Claimant Leon Khasin launched a class action earlier this year alleging that Hershey misleads consumers by claiming that certain dark chocolate products are a source of antioxidants due to their cocoa content.
Hershey, represented by law firm Morrison & Foerster, attempted to have the case stricken, but a district court in California rejected its motion to dismiss on 9 November.
Hershey: ‘Scientifically backed’
Hershey’s head of corporate communications Jeff Beckman told ConfectioneryNews.com: “We are confident that our product labeling and consumer materials about flavanol antioxidants are factual and supported by hundreds of scientific studies.
“The benefits of flavanol antioxidants are well-established and widely recognized amongst food scientists and the nutrition community.”
Khasin alleges that Hershey’s labeling fails to meet the minimum nutritional requirement for a claim to be made and violates several California laws including provisions under the Unfair Competition Law and Consumer Legal Remedies Act.
In its motion to dismiss the case, Hershey argued that its claims were preempted under Food and Drug Administration (FDA) regulations, that Khasin lacked standing to bring the case, and that his claim should be dismissed as relief could not be granted.
However, the court refused to strike the case as District Judge Edward Davila said the antioxidant claim was not necessarily preempted by FDA regulations.
However, he did dismiss one allegation about breach of warranty made by Khasin under the Magnuson-Moss Warranty Act as fewer than 100 people were affected. For the full case, see HERE.
FDA guidance
The FDA issued guidance on antioxidants in 2008 which confirmed that describing the level of antioxidant nutrients present in a food is a nutrient content claim.
Hershey claims on labels that Special Dark Cocoa and Special Dark Kisses are a natural source of antioxidants due to the presence of cocoa flavanols. It also states the amount of antioxidants in the product. For example, Hershey’s 41g Special Dark Kisses contain 180 mg of antioxidants, according to the product label.
FDA guidance says that an antioxidant nutrient content claim can only be made if the nutrients have an established Reference Daily Intakes (RDI), as well as scientifically recognized antioxidant activity.
For a ‘good source’ claim, the food has to contain between 10-19% of the Daily Reference Value (DRV) DRV or RDI per serving.
While there are RDIs set for a variety of vitamins and minerals, there is no RDI set for cocoa under the Code of Federal Regulations. See HERE.
However, the FDA’s guidance also states: “FDA's guidance documents, including this guidance, do not establish legally enforceable responsibilities.”
EU authorities have deemed ‘antioxidant’ content claims to be an unauthorised health claim.