A federal district court judge in California denied in part a motion to dismiss, allowing claims against The Hershey Company to continue, potentially holding the company liable for falsely advertising its Special Dark Cocoa and Special Dark Kisses as “a natural source of flavanol antioxidants.”
The putative class action plaintiff claims he bought the Hershey products – at a higher price – because of the “natural” label.
Hershey filed a motion to dismiss the suit on several grounds, including that the cause of action was preempted by the Food and Drug Administration regulations, that plaintiff lacked standing, and that plaintiff failed to state a claim upon which relief could be granted.
While the federal Food, Drug, and Cosmetic Act and the Nutrition Labeling and Education Act both regulate food labeling and advertising, the court found the plaintiff had not brought suit to enforce the federal statutes; rather, the action was based on parallel state laws, such as the Sherman Food, Drug and Cosmetic Law, that prescribe labeling requirements that are similar, if not identical, to the requirements under the FDCA and NLEA. The court explained that the state duties parallel, rather than add to, federal requirements and concluded that, contrary to defendant’s contention, complying with the demand requested by plaintiff in this cause of action would not require that defendant undertake food labeling or representation different from the provisions of the FDCA or the rules and regulations promulgated by the FDA.
The court also found plaintiff had alleged facts sufficient for Article III standing, based on plaintiff’s argument that he would not have purchased the products in question had he known the truth about the products because of proper labeling, as there were cheaper alternatives at his disposal.
To read the court’s order in Khasin v. The Hershey Company, click here.
Why it matters: The Hershey case is the latest “natural” claim lawsuit for the food industry, with dozens of other similar class actions filed this year. While there continues to be much uncertainty in this area, at least in California, defendants will be unable to get their suits dismissed on preemption grounds where plaintiffs can allege an injury-in-fact, since the state laws mirror the federal law and do not impose any additional food labeling requirements.