Hershey Fights Certification of Antioxidant Labeling Class Action Lawsuit

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The Hershey Company has filed a motion opposing the certification of a chocolate labeling class action lawsuit that alleges Hershey uses false and misleading statements on some of its chocolate and cocoa products, arguing that the plaintiff failed to show the proposed Class was ascertainable.

Plaintiff Leon Khasin filed the chocolate labeling class action lawsuit against Hershey in 2012, alleging the statement “natural source of flavanol antioxidants,” which appears on Hershey’s Special Dark chocolate and cocoa products, is false and misleading. He alleges Hershey’s website, advertising and product labels contain statements that violate state and federal laws.

In May, the court granted summary judgment in favor of Hershey on all but one of the claims set forth in the chocolate labeling class action lawsuit. The lone remaining claim involves the “natural source of flavanol antioxidants” statement.

Last month, Khasin filed a motion to certify a Class of California consumers who, since April 13, 2008, purchased Hershey Special Dark Chocolate or Cocoa, or another Hershey cocoa product with the statement “natural source of flavanol antioxidants” on the label.

On Tuesday, Hershey filed a motion opposing certification of the antioxidant labeling class action lawsuit. Hershey argues that, despite extensive discovery into the issue, Khasin was unable to come up with any convincing evidence to suggest the flavanol antioxidant statements were untrue or that consumers paid a premium for the Hershey products because of the claims.

“Hershey did not include Khasin’s [Unfair Competition Law] claim about the flavanol antioxidant statement in its original motion for partial summary judgment because, at that time, Hershey recognized that there was a potential factual dispute over whether Hershey’s dark chocolate and cocoa products retain the flavanol antioxidants naturally found in the cocoa bean,” Hershey said. “As it turned out, however, Khasin failed to marshal any evidence that Hershey’s flavanol antioxidants statement is false, or that Hershey’s dark chocolate and cocoa products do not contain meaningful amounts of flavanol antioxidants.”

In opposing the certification of the chocolate labeling class action lawsuit, Hershey argues that Khasin has not proven that the proposed Class is ascertainable and will pose significant administrative burdens when identifying eligible Class Members. Hershey argues that it did not directly sell its products to consumers and therefore it holds no record of who purchased products with the allegedly deceptive label. Further, consumers are unlikely to have retained receipts for their chocolate and cocoa purchases.

Hershey also argues that Khasin did not provide any evidence that the potential Class Members saw and relied on the “natural source of flavanol antioxidants” statement. The court has not yet determined whether it will certify the Hershey class action lawsuit.

Khasin is represented by Pratt & Associates, Nelkin & Nelkin PC and Barrett Law Group PA, among others.

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