Unsafe quantities of lead and cadmium in Hershey’s dark chocolate products are the “sweet spot” in Eva Grausz v. The Hershey Co., a products liability and class action case in the U.S. District Court for the Central District of California. [i]

How Much Would You Pay for Lead and Cadmium?

Plaintiff’s scientific allegations are based on a December 2022 Consumer Reports article[ii] and a March 2023 As You Sow article.[iii] Plaintiff regularly purchased Hershey’s Chocolate under the “Lily” brand name in San Diego, California.

Plaintiff contends Hershey’s advertising does not include warnings that the product contains toxic amounts of heavy metals. She asserts she and the purported class relied on Hershey’s product labels and claims that, had she known the products contained heavy metals, she and the purported class either would not have purchased the products or would only have been willing to pay a lesser sum for them.[iv]

An Unreasonable Safety Hazard?

Plaintiff alleged in her second amended complaint Hershey had a duty to disclose the lead and cadmium contents under California’s Unfair Competition Law (UCL), its False Advertising Law (FAL), and its Consumer Legal Remedies Act (CLRA). Plaintiff asserted Hershey’s failure to disclose the presence of lead and cadmium in its products, even at low levels, created an unreasonable safety hazard.

In its successful Motion to Dismiss, Hershey argued plaintiff’s claims of omitted information should fail because Hershey had no duty to disclose the lead or cadmium content and because such trace metals did not pose an unreasonable safety risk. In granting Hershey’s Motion to Dismiss, the court discussed Hammerling v. Google LLC,[v] which stated: “[A] defendant only has a duty to disclose when either (1) the defect at issue relates to an unreasonable safety hazard or (2) the defect is material, ‘central to the product’s function,’ and the plaintiff alleges one of the four LiMandri factors.”[vi]

The LiMandri factors are:

(1) The defendant is in a fiduciary relationship with the plaintiff;

(2) The defendant had exclusive knowledge of material facts not known to the plaintiff;

(3) The defendant actively conceals a material fact from the plaintiff; or;

(4) The defendant makes partial representation but also suppresses some material facts.;[vii]

Although the As You Sow article cited only stated: “No level of lead is safe for children,” Plaintiff asserts, “no amount of lead is known to be safe”[viii] and may lead “to severe health risks and toxicity, including inhibiting neurological function, anemia, kidney damage, seizures, and in extreme cases, coma and death.”[ix] Similarly, the plaintiff’s second amended complaint pleads that cadmium “poses a serious safety risk to consumers because it can cause cancer and is a known teratogen, an agent which causes malformation of an embryo.”[x] Plaintiff contends Hershey’s products pose an unreasonable safety hazard based on the serious health repercussions associated with heavy metals contained therein.

The federal court was not convinced these allegations adequately plead that Hershey’s chocolate products created an unreasonable safety hazard. Plaintiff merely asserted lead and cadmium are carcinogens which may not be safe, and Hershey’s products contain some amount of these substances. Finding these allegations to be insufficient, the Court granted Hershey’s Motion to Dismiss these claims under the UCL, FAL, and CLRA, with leave to amend.[xi]

Lead and Cadmium on the Ingredient List?

Plaintiff further asserted in her second amended complaint that food regulations require Hershey to list lead and cadmium in the ingredient list of their chocolate products.[xii] The FDA has issued a regulation exempting manufacturers from having to disclose incidental additives present in food at “insignificant levels” and do not have any technical or functional effect on that food.[xiii] “Incidental additives” are described as including substances that can migrate to food from equipment or packaging or otherwise affect food, so long as they are not food additives.[xiv]

Plaintiff alleged lead contamination occurs during post-harvest processing. As such, the lead and cadmium in Hershey’s products are incidental additives.[xv] Ultimately, the court held whether these additives are present at insignificant levels to be a question of fact, that could not have been resolved at this early stage of litigation.

Takeaways

This case is ongoing, and the court will likely have to review plaintiff’s third amended complaint. In the meantime, there are a few takeaways for manufacturers in the food industry regarding trace metals such as lead or cadmium:

• Transparency in Labeling: moving forward, the best practice may be to give notice to

consumers that potential contaminants like lead or cadmium may be present to manage

potential legal risks.

• Know Your Limits: be familiar with Proposition 65’s California’s Maximum Allowable Daily Levels (MADL.)

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Sources

[i] Grausz v. The Hershey Company (U.S.D.C., S.D. Cal., No. 23-CV-00028-AJB-SBC)

[ii] Consumer Reports, “Lead and Cadmium in Dark Chocolate,” Consumer Reports (December 2022), https://www.consumerreports.org/health/food-safety/lead-and-cadmium-in-darkchocolate-

a8480295550/

[iii] As You Sow, “Toxic Chocolate,” As You Sow (March 2023), https://www.asyousow.org/environmental-health/toxic-enforcement/toxic-chocolate

[iv] Grausz v. The Hershey Company, – F.Supp.3d – (2024) 2024 WL 312688, at *1

[v] Hammerling v. Google LLC, 615 F. Supp. 3d 1069 (N.D. Cal. 2022)

[vi] Id. at 1085; Grausz v. Hershey Company, – F.Supp.3d –  (2024) 2024 WL 312688, at *4

[vii] LiMandri v. Judkins (1997) 52 Cal.App.4^th 326, 336

[viii] Grausz v. The Hershey Company, – F.Supp.3d –  (2024) 2024 WL 312688, at *5

[ix] Ibid.

[x] Ibid.

[xi] Grausz v. The Hershey Company, – F.Supp.3d – (2024) 2024 WL 312688, at *5

[xii] Grausz v. The Hershey Company (S.D. Cal., Jan. 25, 2024, No. 23-CV-00028-AJB-SBC) 2024 WL 312688, at *5

[xiii] 21 C.F.R. § 101.100(a)(3)

[xiv] 21 C.F.R. § 101.100(a)(3)(iii)

[xv] Grausz v. Hershey Company (S.D. Cal., Jan. 25, 2024, No. 23-CV-00028-AJB-SBC) 2024 WL 312688, at *5