Clark v. The Hershey Company

Background

The Hershey Company sold Brookside Dark Chocolate products labeled “No Artificial Flavors.” The products contained d-1 malic acid, which the plaintiffs described as a synthetic chemical and artificial flavoring ingredient. Howard Clark, Todd Hall, and Angela Pirrone alleged that the label was false or misleading and asserted twelve claims, including fraud by omission, negligent misrepresentation, violations of California consumer-protection and advertising laws, breach of express and implied warranties, violations of New York General Business Laws §§ 349 and 350, and violations of New York warranty provisions.

The court had previously denied Hershey’s motion to dismiss after treating it as a summary-judgment motion under Federal Rule of Civil Procedure 12(d), because a genuine factual dispute existed about whether malic acid functioned as a flavoring agent. The plaintiffs later moved for class certification, and Hershey moved for summary judgment.

Summary-judgment standard

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. The court viewed the evidence in the light most favorable to the plaintiffs but required them to identify specific evidence that could support a trial on their claims.

Artificial flavor and injury

The court distinguished an “artificial ingredient” from an “artificial flavor.” Relying on Food and Drug Administration regulations, it explained that an artificial flavor is a substance whose function is to impart flavor, while artificial ingredients include a broader category of substances. The court then focused on injury and causation. Under the California laws at issue, a consumer could be injured by purchasing a product because of misleading labeling, but the consumer also had to show that the alleged misrepresentation caused the purchase or other loss. The New York claims similarly required injury resulting from the alleged mislabeling.

Howard Clark

Clark testified that he would not have purchased the products if he had known they contained d-1 malic acid. But he also testified that he understood “No Artificial Flavors” to mean that the entire product contained no artificial ingredients and that he did not want to eat anything containing malic acid. The court held that his alleged injury resulted from that misunderstanding, not from the alleged mislabeling. Because he would have suffered the same injury regardless of whether Hershey’s label was misleading, the court granted Hershey’s motion for summary judgment as to all of Clark’s claims.

Todd Hall

Hall began buying the products in 2014, before the “No Artificial Flavors” statement appeared in mid-2017. Although malic acid was present throughout his purchasing period, Hall testified that he stopped buying the products after learning from his lawyers that they contained artificial flavoring. The court found no evidence that, after the label appeared, Hall looked at it or based any purchase decision on it. It therefore held that he did not rely on the label and granted summary judgment for Hershey as to all of his claims.

Angela Pirrone

Pirrone began buying the products in 2010, before the label appeared, and testified that she would have paid less if she had known the products contained artificial flavors. The court found no evidence that she changed her purchasing behavior in response to the label after it appeared. Her decision to stop buying the products resulted from learning from her attorneys that they contained an artificial flavor. The court held that she did not rely on the label and granted summary judgment for Hershey as to all of her claims.

Disposition

The court granted Hershey’s motion for summary judgment. It denied the plaintiffs’ class-certification motion as moot. The court allowed the plaintiffs to promptly move for another named plaintiff to intervene and amend the complaint, provided that the motion was made by December 5 at noon, while expressly stating that allowing the motion to be considered did not mean it would be granted.