Antioxidant Claims Could Cost Hershey

SAN FRANCISCO (CN) - Hershey may be liable for advertising healthful antioxidants as an ingredient in Special Dark Cocoa and Special Dark Kisses, a federal judge ruled.

Lead plaintiff Leon Khasin says he bought the pricier Hershey chocolate because the packaging labeled it "a natural source of flavanol antioxidants."

But Hershey insisted that the Food, Drug and Cosmetic Act pre-empts the state-law claims of the April 2012 complaint.

U.S. District Judge Edward Davila found, however, that the food-labeling requirements in question mirror those of the Food and Drug Administration.

"As such, 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 16-page decision states. "For these reasons, the court cannot conclude that plaintiff's claims are expressly preempted."

Davila also found fault with Hershey's claim that Khasin had not alleged bodily injury after purchasing their products.

"In the amended complaint, plaintiff asserts that he would not have purchased the products in question had he known the truth about these products and had they been properly labeled in compliance with the labeling regulations," Davila wrote.

"Further, plaintiff alleges that he had cheaper product alternatives for purchase at his disposal. Notwithstanding whether this type of economic injury is merely a 'legal construct' as defendant contends, courts have found it to be an adequate allegation to satisfy the injury-in-fact prong of Article III standing."

He continued: "Furthermore, plaintiff alleges that he has lost money or property when he purchased the products in question because he did not receive the full value of those products as advertised and labeled due to the alleged misrepresentation."

Davila did dismiss a claim under the federal Magnuson-Moss Warranty Act, finding the law does not apply in a case such as this where there are fewer than 100 named plaintiffs.

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