A recent lawsuit alleges that Skittles consumers “are at heightened risk of a host of health effects” because Skittles uses titanium dioxide (TiO2). TiO2 is considered an inert and safe material, and for decades has been used in a range of consumer products including house paint, ceramics, paper, and printing inks. In fact, you can find TiO2 in consumable products such as milk, coffee creamer, salad dressing, chocolate, chewing gum, sauces, toothpaste, and even vitamin supplements. But this has not stopped lawsuits against products such as Skittles, Tylenol, and tampons. This is likely because the International Agency for Research on Cancer has classified TiO2 as a possible carcinogen when inhaled in dust form. In 2021, the European Food Safety Authority deemed as not safe the use of TiO2 as a food additive. Shortly thereafter, the European Union banned the use of TiO2 as a food additive in consumable products with the ban in full effect by August 2022.
On July 14, 2022, Jenile Thames, sued Mars, Inc. in the Northern District of Illinois alleging that Mars’ product, Skittles, is “unfit for human consumption because [it] contains [TiO2].” On August 11, 2022, William Mignin, III, sued Mars, Inc. in the Northern District of California with similar allegations. On August 29, 2022, Valerie Morrison sued Johnson & Johnson Consumer Inc., for the alleged use of TiO2 in its Tylenol product. On August 31, 2022, Danielle Paulson sued This is L. Inc. in the Northern District of Illinois for their alleged use of TiO2 in tampons.
All complaints assert a class action and, unsurprisingly, request attorneys’ fees and statutory penalties. Both Illinois complaints assert claims under the Illinois Consumer Fraud and Deceptive Business Practices Act. And all complaints allege that the European Union banned the use of TiO2 as a food additive. These similar allegations may be the start of a pattern.
These cases will not be the last. No two cases were filed by the same counsel; the complaints were filed in two states and three federal courts; and the complaints cover a wide range of products. With no end in sight, companies that use TiO2 should prepare now by bolstering their scientific literature on the safety of TiO2 and considering possible legal strategies.