Second Class Action Filed Against Frozen Dessert Maker over Misstated Calories

A California resident has filed a putative nationwide class action with a
California subclass against a company that makes low-calorie frozen desserts
that allegedly have as much as 68 percent more calories than touted on the
product label. Freeman v. Arctic Zero, Inc., No. 12-2279 (S.D.
Cal., filed September 18, 2012). Similar putative class claims filed by another
California resident in August are summarized in Issue 451 of this Update.

According to plaintiff Brenda Freeman, “[c]onsumers do not receive the
benefit of their bargain because the actual calorie content of the Frozen
Desserts is up to 68 percent higher than Arctic Zero prominently represents
on the front of the product packaging, on the nutritional label, and in Arctic
Zero’s other marketing materials.” She cites testing on the company’s Chocolate
Peanut Butter and Vanilla Maple products showing them to be higher
in calories than the 150 calories per pint on package labels. She also quotes
purported consumer comments posted on the company’s website, expressing
satisfaction with a dessert product containing so few calories.

Alleging violation of the Magnuson-Moss Warranty Act, breach of express
warranty, unjust enrichment, and violations of California’s Consumers Legal
Remedies Act, Unfair Competition Law and False Advertising Law, the plaintiff
seeks damages, restitution and/or disgorgement, punitive damages, costs,
interest, and attorney’s fees.