HARRISBURG – The Hershey Company has countered claims from four plaintiffs ranging from middle-aged to senior citizens who alleged they suffered permanent cardiac damage as a result of eating its black licorice candy, with arguments explaining the relief they request is preempted by federal law.
Jane Lavoie-Fern of Tacoma, Wash., Sherry Konwaler of Soddy Dolly, Tenn., Harvey Horowitz of Lake Worth, Fla. and Marie Bruen of Boston, Mass. filed suit in the U.S. District Court for the Middle District of Pennsylvania on July 15 versus The Hershey Company, of Hershey.
“Defendant Hershey is now, and at all times mentioned in this complaint was, in the business of producing and selling various food and beverage items, including certain black licorice products such as its Twizzlers and Good and Plenty brands. Black licorice contains the compound glycyrrhizin (also known as glycyrrhizic acid), which is the sweetening compound derived from licorice root,” the suit stated.
“Glycyrrhizin can have very harmful effects on the body, such as causing potassium levels in the body to fall dramatically, and can create harmful imbalances in other minerals such as sodium. As a result, consumption of black licorice can cause people to experience abnormal heart rhythms, high blood pressure, edema (swelling), lethargy, and/or congestive heart failure.”
The suit alleged while “many black licorice products in the United States use one or more synthetic ingredients that mimic the flavor and smell of the black licorice root and that are safer,”, the defendant “has refused to use such substitutes, and instead continues to use the dangerous glycyrrhizin compound.”
Additionally, the suit said that while Hershey has faced litigation from other plaintiffs and/or their estates, who suffered permanent atrial fibrillation or death as a result of eating their black licorice product, it has not placed any warnings on that product.
According to the lawsuit, the four plaintiffs, all ranging in age from their 50’s to their 70’s, each suffered various cardiac maladies – allegedly as a result of eating the defendant’s black licorice product – including heart failure, edema, skyrocketing blood pressure and atrial fibrillation.
UPDATE
Hershey’s counsel filed a motion to dismiss on Dec. 3, citing the U.S. Constitution’s Supremacy Clause as invalidating state law which runs contrary to federal law, and thus, nullifying the relief sought by the plaintiffs.
“Plaintiffs’ claims – and the underlying relief sought (mandatory food labeling and/or alteration of GRAS ingredients) – directly conflicts with the FDA’s role under federal law to establish a uniform, national policy for food safety,” the dismissal motion read, in part.
“Plaintiffs do not allege that defendant’s labeling is anything other than truthful and in full compliance with FDA regulations. Instead, by way of their state tort law claims, plaintiffs impermissibly seek to impose additional and separate labeling requirements that go far beyond those the FDA specifically determined were appropriate and required.”
According to the defendant, the plaintiffs seek to have Hershey do more than list the “common or usual name” with respect to the ingredient glycyrrhizin – but instead, to claim that without some unspecified warning language regarding the health effects of ingesting large amounts of glycyrrhizin, Hershey’s products are defective.
“Inclusion of any such warning language would be at odds with express preemption provisions contained in the regulatory scheme implemented pursuant to the Nutrition Labeling and Education Act and the Food, Drug and Cosmetic Act. Plaintiffs’ claims are therefore expressly pre-empted,” the defendant said.
For counts of negligence and strict liability, the plaintiffs are seeking general damages, special damages, and punitive damages in an amount to be proven at trial, plus pre-judgment and post-judgment interest, attorneys’ fees, the costs and disbursements of the within action, and such other, further and different relief, which this Court deems just and proper.
The plaintiffs are represented by Walter T. Grabowski of Holland Brady & Grabowski in Wilkes-Barre, plus Jonathan Ellery Neuman of the Law Offices of Jonathan E. Neuman, in Fresh Meadows, N.Y.
The defendant is represented by Christian E. Piccolo and Emmanuel Brown of Faegre Drinker Biddle & Reath, in Philadelphia.
U.S. District Court for the Middle District of Pennsylvania case 1:21-cv-01245
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com