PHILADELPHIA – A local woman has filed class action litigation against chocolate manufacturer and retailer Hershey, charging that its products contain toxic, carcinogenic contaminants like heavy metals, such as cadmium and lead.
Denethia Durgin of Philadelphia initially filed suit in the Philadelphia County Court of Common Pleas on Jan. 11 versus The Hershey Company, of Hershey.
(The case was then removed to the U.S. District Court for the Eastern District of Pennsylvania on Jan. 17.)
“Defendant manufactures and sells various chocolate products, including Hershey’s Special Dark Mildly Sweet Chocolate, Lily’s Extra Dark Chocolate 70% Cocoa, and Lily’s Extremely Dark Chocolate 85% Cocoa. Hershey sells the products throughout the United States, including in Pennsylvania. A December 2022 report by Consumer Reports related that ‘research has found that some dark chocolate bars contain cadmium and lead – two heavy metals linked to a host of health problems in children and adults,’ in amounts such that ‘eating just an ounce a day would put an adult over a level that public health authorities and [Consumer Report’s] experts say may be harmful for at least one of those heavy metals,” the suit says.
“Hershey’s Special Dark Mildly Sweet tested at 265% of ‘California’s maximum allowable dose level (MADL) for lead.’ One ounce of this Products contains 1.325mcg of lead, whereas California’s MADL is 0.5 micrograms. Similarly, Lily’s Extra Dark Chocolate 70% Cocoa tested at 144% of the MADL for lead, and Lily’s Extremely Dark Chocolate 85% Cocoa tested at 143% of the MADL for lead, and 101% for cadmium.”
The suit adds that both lead and cadmium “are heavy metals and their presence in food, alone or combined, poses a serious safety risk to consumers because they can cause cancer, and significant and often irreversible damage to brain development, liver, kidneys, bones, and other major health problems.”
“Given the negative effects of toxic lead and cadmium on human development, especially in embryos and children, and on adult health, the presence of toxic heavy metals in the products is a material fact to reasonable consumers, including plaintiff and members of the class. A company as ubiquitous as Hershey has earned significant public trust that its foods are safe and fit for regular consumption. Reasonable consumers believe that Hershey would not sell products that are unsafe,” the suit states.
“Reasonable consumers do not expect to consume heavy metals in the products. Hershey knew that if the presence of toxic heavy metals in the products was disclosed to plaintiff and the class members, they would be unwilling to purchase the products or would pay less for them. In light of Hershey’s knowledge that plaintiff and the class members would be unwilling to purchase the products or would pay less for the products if they knew that the products contained toxic heavy metals, Hershey intentionally and knowingly concealed this fact from plaintiff and the class members, and did not disclose the presence of lead or cadmium on the label of the products.”
For counts of breach of implied warranty of merchantability, unjust enrichment and strict liability, the plaintiff is seeking a certified class of representatives led by the plaintiff, orders for the defendant to destroy all misleading and deceptive advertising materials and product labels, to recall all of the products, to disgorge all monies, revenues and profits obtained from sales of the products, to pay compensatory damages and punitive damages, plus attorneys’ fees and costs.
The plaintiff is represented by John K. Weston of Sacks Weston Diamond, in Philadelphia.
The defendant is represented by Barbara L. Mullin of Patterson Belknap Webb & Tyler, in New York, N.Y.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-00188
Philadelphia County Court of Common Pleas case 230100940
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com