n December 2022, Consumer Reports published a study on lead and cadmium in dark chocolate. Dark chocolate came into vogue when studies showed antioxidants in it may have health benefits. Consumer Reports discovered something else: Eating an ounce a day of certain dark chocolate bars in select samples put an adult over the Maximum Allowable Dose Level (MADL) set by the California Health & Safety Code. The article did not consider whether any of these MADLs had been displaced as a result of litigation.

In response, plaintiffs filed several class action lawsuits against certain manufacturers of dark chocolate bars, claiming that their failure to disclose the possibility of lead contamination in the products was a deceptive marketing practice and that they would not have purchased the products or would have paid less for them but for the failure to disclose. The plaintiffs in Kell v. Lily’s Sweets, LLC, 23 Civ. 0147 (VM), 2024 WL 116651 (S.D. N.Y. Mar. 13, 2024) and Grausz v. The Hershey Co., No. 23-cv-00028-AJB-SBC, 2023 WL 6206449 (S.D. Cal. Sept. 11, 2023) did not claim personal injury. They did not test the chocolate bars that they purchased for heavy metals. They asked the district courts simply to infer lead exposure based on the Consumer Reports article.

Recently, in Kell v. Lily’s Sweets, the district court ruled that in light of circuit precedent, “It would be impermissible conjecture to extrapolate” the Consumer Reports findings from two or three samples of the chocolate bars “to every Lily’s Extra Dark Chocolate 70% Cocoa chocolate bar ever sold, or to the specific products purchased by Kell, without some specific factual basis to do so.” In contrast, in Grausz v. The Hershey Co., the court determined that the plaintiff’s allegations of injury-in-fact based on the Consumer Reports article was legally sufficient, but dismissed the plaintiff’s claims on other grounds.

The Consumer Reports article did not consider a consent judgment into which the defendant in Grausz entered in a lawsuit filed under California’s Proposition 65 (i.e., California’s Safe Drinking Water and Toxic Enforcement Act), displacing the default MADLs for lead and cadmium for its products. The court agreed that under the levels set by the consent judgment, the plaintiff failed to show the products created an unreasonable safety hazard. The court dismissed the plaintiff’s unfair competition law, consumer legal remedies act and false advertising law claims on this basis, as well as the plaintiff’s implied warranty of merchantability claim for lack of supporting facts showing that the defendant’s bars were somehow distinct from those that are safe.

Kell establishes that a particularized showing of an injury-in-fact is ordinarily essential for a plaintiff to establish Article III standing to challenge a food and beverage product. Moreover, Grausz underscores that in those instances when a court is willing to treat a generalized injury as sufficient, the defendant may still convince the court to dismiss the lawsuit because the particular facts are exceptional.

For product labeling consultation or consultation regarding a challenge to your food and beverage product, please contact the Holland & Knight Food and Beverage Litigation Team

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