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District court will not dismiss Hershey antioxidant labeling suit

By Oliver Nieburg+

26-Jun-2013
Last updated on 26-Jun-2013 at 13:38 GMT

Claimant questions antioxidant claims on Hershey's Special Dark Kisses and Special Dark Cocoa. Hershey says its labels are backed by science. Photo Credit: Soap.com
Claimant questions antioxidant claims on Hershey's Special Dark Kisses and Special Dark Cocoa. Hershey says its labels are backed by science. Photo Credit: Soap.com

Hershey will face a class action lawsuit alleging it misled consumers through antioxidant labeling claims after a US court refused to consider its protective order as part of an attempt to dismiss the case.

Private claimant Leon Khasin launched a class action against Hershey last year, alleging antioxidant labeling claims made on its Special Dark Cocoa and Special Dark Kisses violated several California laws.

The US District Court in Northern California recently ordered that Khasin had not relied on Hershey’s antioxidant information on its website and in its advertising and dismissed this part of the claim - limiting the class action to product labels.

Hershey then filed a protective order that would prevent Khasin from making new discoveries about the company’s website and advertising.

On Monday, The US District Court in Northern California referred Hershey’s protective order, which seeks to prevent the claimant from introducing new information about the company’s website and advertising, to a magistrate.

Not considering dismissing case

US District Judge Edward J. Davila said he would “not entertain Defendant’s [protective order] request as part of a dispositive motion”.

The district court previously refused Hershey’s motion to dismiss in November.

Davila ordered Hershey to re-file its protective order request with Magistrate Judge Paul S. Grewal.

Hershey says antioxidant claims are scientifically backed

Hershey previously told this site that its flavanol antioxidant claims are “factual and supported by hundreds of scientific studies.” 

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 on antioxidant claims

The Food and Drug Adiminstration (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.

Its 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. 

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.”

The EU considers ‘antioxidant’ labeling an unauthorized health claim.

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