A California federal court has granted Hershey’s motion for summary judgment in a lawsuit originally alleging that the company mislabels its Kisses®, cocoa products and Ice Breakers® mints with respect to healthy diet claims, sugar-free claims, serving sizes, and the content of antioxidants, nutrients, vanillin, and polyglycerol polyricinoleic acid. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered March 31, 2015). The claims were previously cut to a single unfair competition claim over the use of the statement “natural source of flavanol antioxidants” on dark chocolate and cocoa products. Additional information about these rulings appears in Issues 463 and 523 of this Update.

The plaintiff argued that Hershey’s claim implied that flavanol antioxidants conferred health benefits, despite evidence showing no such benefit. He failed to prove that the statement in question would be likely to mislead reasonable consumers, the court said. The plaintiff “testified in his deposition that Hershey’s products are candy, not health foods,” the court noted, and the statement on the packaging had not led him to believe otherwise. The plaintiff could not cite any extrinsic evidence supporting his claim that a reasonable consumer would be misled, and even if the court agreed that the statement violated U.S. Food and Drug Administration guidelines on nutrient content claims, “not every regulatory violation amounts to an act of consumer fraud.” The court also refused to find that the plaintiff had suffered an economic injury based on the price premium he argued that he paid based on the “natural source of flavanol antioxidants” statement.


Issue 560

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.