Search results for: chocolate + heavy metal

  • A district court judge has granted (Law360 subscription required) Trader Joe’s motion for summary judgment in a class action lawsuit alleging that the company’s dark chocolate bars contain the heavy metals lead, cadmium, and arsenic. In granting summary judgment, the court found that Trader Joe’s “did not have exclusive knowledge that the dark chocolate bars contained or had a material risk of containing heavy metals,” which is a requirement under the applicable state consumer protection laws.
  • In January 2023, Trader Joe’s was hit with 10 class action complaints claiming the company failed to disclose the presence of heavy metals in dark chocolate products. The complaints were consolidated in April 2023, and claims for violations of consumer protection laws in Washington, Illinois, and New York survived a motion to dismiss. Each of the claims under these state laws requires exclusive knowledge of omitted information and excludes claims if that omitted information was reasonably obtainable or easily discoverable by consumers.
  • Trader Joe’s presented articles from as early as 2002 reporting the presence of heavy metals in chocolate products. The judge rejected arguments that the information was not reasonably obtainable because the plaintiffs were not aware that the products contained heavy metals, stating that “[w]hether information on the presence of heavy metals in the products was reasonably obtainable (or easily discoverable) does not depend on what individual plaintiffs were or were not aware of . . . [but] turns on what information was reasonably obtainable or easily discoverable by consumers about the presence of heavy metals in dark chocolate.”
  • The judge did note, however, that if the plaintiffs had alleged that Trader Joe’s failed to disclose a specific amount of heavy metals, high levels of heavy metals, or that the levels exceeded some kind of regulatory threshold, then the information might not be reasonably obtained by consumers.
  • The presence of heavy metals in chocolate has been the subject of studies and lawsuits in recent years, as we have previously blogged. Keller and Heckman will continue to monitor activity related to heavy metals in chocolate and other foods.
  • According to a recent Consumer Reports study, about one-third of chocolate contains high levels of lead and cadmium. The study tested 48 cacao-containing foods, including cocoa powder, chocolate chips, milk chocolate, and brownie, cake, and hot chocolate mixes, and follows a report of heavy metals in dark chocolate bars that we covered last December.
  • Consumer Reports assessed the lead and cadmium by comparing the amount in a serving of each product with the Maximum Allowable Dose Level (MADL) for each metal established under California’s Proposition 65. Sixteen of the 48 tested products contained levels of at least one metal that exceeded the MADL. Dark chocolate tended to have higher levels of both metals, while some of the other products had high levels of lead. The report suggests this is likely because lead and cadmium are concentrated in cocoa solids, and dark chocolate contains more cocoa solids than milk chocolate.
  • Lead and cadmium are of particular concern for pregnant women and young children, as the metals have been linked to developmental delays and learning and behavior problems. According to the report, eating just an ounce of chocolate with high levels of the metals could lead to harm.
  • The National Confectioners Association (NCA) responded to the report, saying that “chocolate and cocoa are safe to eat and can be enjoyed as treats as they have been for centuries.” According to the NCA, the report disregards lead and cadmium levels set in a Consent Judgment by the Superior Court of the State of California set in 2018 that are still in effect, and chocolate makers “remain dedicated to being transparent and socially responsible.”
  • Keller and Heckman will continue to follow and report on this issue.
  • On March 10, Hershey Company filed a motion to dismiss a consumer class action suit which claimed that its chocolate contained toxic substances. Hershey maintains that it “never promised, in words or substance, that its products were utterly lead- and cadmium- free,” just that they were safe to consume. See Eva Grausz v. The Hershey Company, case number 3:23-cv-00028, in the U.S. District Court for the Central District of California.
  • Hershey maintained that the plaintiffs failed to show an injury-in-fact, arguing that the suit does not allege that the bars purchased were contaminated; rather, plaintiffs rely on testing reported by the publication Consumer Reports (CR). “That CR detected traces of lead and cadmium in two or three product samples does not indicate that the chocolate bars plaintiff herself purchased contained those contaminants,” said Hershey.  The CR study published in December 2022 tested 28 dark-chocolate bars. All candy tested contained both lead and cadmium, but 23 of them contained more than 0.5 micrograms of lead, more than 4.1 micrograms of cadmium, or both. To read more about the CR study, see our previous blog post here.
  • Hershey claims that the plaintiffs lack standing to bring a claim because CR did not test the particular bars purchased, and the study’s analysis states that results “can vary” from bar to bar. Alternatively, even if the candy consumers bought did contain lead and cadmium at the levels stipulated, they would still lack standing because the presence of heavy metals in low amounts do not render the food inedible or unsafe to consume.
  • Moreover, Hersey maintains, it’s a sad reality of “modern life” that lead and cadmium are omnipresent in the air, water and soil, making it impossible for anyone to make a product “absolutely free” of heavy metals. Accordingly, the company had never made that guarantee but at most implicitly promised the products were safe to consume.
  • Consumers claimed that they frequently purchased Lily’s Extremely Dark Chocolate 85% Cocoa, which is made by Hershey and tested at 143% of the maximum allowable dose level for lead in the state of California and 101% of the maximum allowable dose for cadmium. Other products named in the CR study included Hershey’s Special Dark Mildly Sweet and Lily’s Extra Dark 70% Cocoa.
  • Hershey is not the only company to face recent consumer actions for chocolate products as a result of the CR study. Earlier this month, chocolate makers Mondelez Global LLC, which manufactures Hu-branded chocolate, and Lindt & Sprungli North America Inc. were hit with proposed class actions in New York. See Newman v. Lindt & Sprungli (North America) Inc., case number 1:23-cv-01972, and Newman v. Mondelez Global LLC, case number 1:23-cv-01988, in the U.S. District Court for the Southern District of New York.
  • Keller and Heckman will continue to monitor consumer class actions regarding heavy metals in food products.

  • On December 15, 2022, Consumer Reports published an article in which they report that some dark chocolate bars contain excessive amounts of cadmium and lead. Cadmium and lead are heavy metals that have been linked to adverse health effects.
  • Scientists at Consumer Reports measured the amount of heavy metals in 28 dark chocolate bars from a variety of brands. Cadmium and lead were detected in all of the bars that were tested. Further, the article notes that for 23 of the bars, eating an ounce per day could exceed levels established by public health authorities and Consumer Reports.
  • The article notes that dark chocolate has a reputation for being healthier treat because of its cocoa solids which include antioxidants. However, the cocoa solids also contain the heavy metals. For that reason, the article concludes that dark chocolate is generally higher in heavy metals than milk chocolate.
  • Research shows that lead and cadmium may get into the cacao in different ways – with cadmium being absorbed from the soil during growth and lead getting in after beans are harvested. Thus, Consumer Reports suggests that addressing the contamination will require different solutions for each heavy metal. In the meantime, the article urges consumers to be mindful of the risks and minimize potential harms where possible.