Courtney Jorstad  |  April 1, 2015

Category: Consumer News

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Hersheys Special Dark ChocolateA false advertising class action lawsuit filed against The Hershey Co. over alleged antioxidant claims on its product labels was dismissed Tuesday by a California federal judge, who said that it isn’t likely that a reasonable consumer would be misled.

U.S. District Judge Edward J. Davila had already dismissed all counts against Hershey in May 2014 except the alleged violation of California’s Unfair Competition Law over the statement “natural source of flavanol antioxidants” that was printed on the labels of some of Hershey’s dark chocolate and cocoa products.

Judge Davila’s Tuesday ruling was in response to Hershey’s motion for summary judgement and plaintiff Leon Khasin’s motion for partial summary judgement.

“The motions were taken under submission without oral argument,” the California federal judge wrote. “At the summary judgement stage, the Court ‘does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.'”

Hershey argued that Khasin’s argument based on the Unfair Competition Law can only continue if he can “prove he was deceived by Hershey’s ‘natural source of flavanol antioxidants’ statements.”

Hershey also said that Khasin’s had not shown how an entire class of reasonable consumers would have been misled by Hershey’s statements, and there is a lack of evidence that Khasin was injured by Hershey’s statements.

Judge Davila said that he has concluded that “there is insufficient evidence that the ‘natural source of flavanol antioxidants’ statements on the challenged Hershey products were likely to mislead reasonable consumers and that the label statements were therefore unlawful on that basis.”

For that reason, he said he is granting Hershey’s motion for summary judgement and denying Khasin’s motion for partial summary judgement “because it is largely a ‘mirror image.'”

Khasin filed his Hershey class action lawsuit against the chocolate maker in April 2012, alleging that several of its chocolate products were deceptively labeled and violated several federal and state regulations.

Specifically, Khasin said that the antioxidant statements on Hershey’s labels were deceiving and argued that the labels were both unlawful and misleading.

In order for a product’s label to be considered deceptive or misleading, Judge Davila explained, it must be shown that the labels would deceive “‘an appreciable number of reasonably prudent purchasers.'”

Judge Davila says that Khasin’s consumer surveys about Hershey’s antioxidant statements are considered “insufficient” by the Ninth Circuit Court of Appeals, and he “provides only his own personal logic to arrive at the conclusion that the statement, ‘natural source of flavanol antioxidants’ is misleading.”

In addition, because Khasin said that “at least 90 percent” of his Hershey chocolate purchases were eaten “by someone other than me,” the California federal judge said that he can’t show how he was injured by the “alleged deceptive labeling.”

As for whether the antioxidant statements are unlawful, Hershey argued that its “‘Special Dark chocolate and cocoa products retain flavanol antioxidants naturally present in the cocoa bean’ and that there is no evidence proffered by either party rebutting this statement.”

Khasin must prove he was deceived under “all elements of the UCL claim, not just the ‘prong’ under which the plaintiff brings the suit,” the federal judge explained, which he says he fails to do.

Khasin is represented by Richard R. Barrett of Law Offices of Richard R. Barrett PLLC and Ben F. Pierce Gore of Pratt & Associates.

Hershey is represented by Steven A. Zalesin, Travis J. Tu and Michelle W. Cohen ofPatterson Belknap Webb & Tyler LLP and John W. Fowler of Bergeson LLP.

The Hershey Antioxidant Class Action Lawsuit is Leon Khasin v. The Hershey Co., Case No. 5:12-cv-01862, in the U.S. District Court for the Northern District of California.

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