Texas Attorney General (AG) Ken Paxton on Wednesday announced an investigation into Mars, Incorporated (Mars) for deceptive trade practices that allegedly violate the rights of Texas consumers.
The investigation centers on two allegations against Mars, a large multinational manufacturer most known for its brands of candy like M&M’s, Skittles and Snickers. First, Mars publicly announced in 2016 its plan to remove all artificial colors from its human food portfolio, but the company later chose not to remove food dyes from products sold in the US. Mars did, however, remove these same dyes from food sold in Europe. This point is not in contention, as Mars acknowledges they made this decision after research that found “consumer expectations regarding colors in food differ widely across markets and categories.”
The second allegation was that Mars falsely claimed that “artificial colors pose no known risks to human health or safety.” In Wednesday’s statement, AG Paxton asserted that these dyes “have been linked to a number of negative health outcomes, including Attention-Deficit/Hyperactivity Disorder (ADHD), autism, and even cancer.” The current food dye safety debate centers on whether the US Food and Drug Administration’s (FDA) official position that artificial dyes are “safe when used in accordance with regulations” is adequate, given mounting evidence that dyes may cause behavioral problems in some children. There is conflicting evidence regarding broader health concerns, such as cancer. In the EU, food products containing certain artificial food dyes are required to carry a warning label stating that the dye “may have an adverse effect on activity and attention in children.”
The investigation will be brought under the Texas Deceptive Trade Practices Act (DTPA). The DTPA prohibits false, misleading, and deceptive business practices, allowing Texas consumers to recover up to three times their damages in private lawsuits, while enabling the AG to impose civil penalties of up to $10,000 per recorded violation. Section 17.46(b) of the DTPA lists over 30 prohibited practices, such as false advertising and misrepresenting product quality. AG Paxton initiated the investigation into Mars by issuing a Civil Investigative Demand (“CID”) to obtain documents from Mars as part of the investigation. A CID allows federal and state law enforcement agencies to gather information and evidence relevant to their civil investigations.
This marks the latest legal battle for the Texas AG, who is currently engaged in litigation against a New York-based physician for providing abortion medication to a Texas resident. In April, he announced a lawsuit against the city of San Antonio for unlawfully using public funds to subsidize out-of-state travel for abortions.
