Federal Judge: Claims Against Hershey Not Barred by FDCA

CALIFORNIA A federal court in California has rejected arguments by The Hershey Company that a plaintiff's claims against the chocolate icon are preempted by U.S. law. A putative class action lawsuit filed by Leon Khasin has accused Hershey of engaging in misleading conduct by advertising and labeling products in violation of several California state laws.

Edward J. Davila, a federal judge for the Northern District of California in the San Jose division, ruled the claims were not barred by language in the Federal Food, Drug and Cosmetic Act, as amended by the 1990 Nutrition Labeling and Education Act.

Hershey relied on a provision that precludes enforcement of federal law other than by the U.S. government, and the company also pointed to a 2012 holding (Pom Wonderful LLC vs. Coca-Cola Co.) by the U.S. Court of Appeals for the 9th Circuit. But those arguments didn't persuade the court.

"In this case, Plaintiff has not brought suit to enforce the federal statute," the judge wrote. Instead, "Plaintiff's action is based on parallel state laws that mirror the relevant sections of the FDCA and the NLEA. Plaintiff's multiple claims are predicated upon state laws, such as the Sherman Food, Drug and Cosmetic Law, which prescribes labeling requirements that are similar, if not identical to, the requirements under FDCA and NLEA. In such cases, courts have refused to find that preemption precludes the private, state-based causes of action."

Davila also rejected Hershey's contention that Khasin lacked standing to bring the lawsuit, although his Nov. 9 ruling wasn't a total loss for Hershey. Some breach of warranty claims filed under state and federal laws were thrown out of the case.

Among some of the allegations in the lawsuit: that Hershey has made unlawful antioxidant claims, failed to abide by the standards of identities for its chocolate and cocoa products and neglected to use the common or usual names of ingredients on its product labels.