In what may prove to be an ominous and emerging trend, two class action lawsuits were recently filed against The Hershey Company and Trader Joe’s. The class actions, both filed in federal court in New York, allege that dark chocolate products sold by the companies contain unsafe levels of lead and cadmium. Because the companies knew or should have known of the presence of the heavy metals, the plaintiffs allege, the companies were required to disclose the presence on product labeling.
Both cases purport to be filed, in part, in response to a recent Consumer Reports article, which evaluated the levels of lead and cadmium in dark chocolate products. The complaints specifically reference the Consumer Reports article as the factual background for the complaint. According to the complaint, tested levels in the products in question in these cases were allegedly above the California Maximum Allowable Dose Level per ounce of the chocolate. California’s Maximum Allowable Dose Levels are part of California’s Office of Environmental Health Hazard Assessment’s Proposition 65 regulations.
The complaints allege that the dark chocolate products in question contain unsafe levels of lead and cadmium, and that the presence of these metals was not disclosed on the product labels. The plaintiffs allege that they would not have paid as much for the products had they known of the presence of the heavy metals. Specifically, the claims alleged are: (1) false, deceptive, and misleading advertising because the presence of these metals is not disclosed (violation of New York General Business Law (deceptive acts and practices; false advertising)); (2) breach of implied warranty; (3) unjust enrichment. A national class and a New York class were requested in both class actions, with the first claim applicable to the NY class, and the remaining claims applicable to the national class.
These cases, in addition to previous class actions targeting baby food companies and spice companies, indicate continued consumer focus on the presence of heavy metals in foods.
Notably, these cases may also very well represent the first time that national class action plaintiff lawyers rely upon purported California Proposition 65 safety standards as a prop for, and to justify the merits of, a national class action against a food company.
Moving forward, we will continue to monitor these cases closely, and report on new and emerging developments.
Liz Presnell is a food industry consultant and lawyer, and has worked in the food industry for nearly a decade. She can be reached at presnell@foodindustrycounsel.com.