By Riëtte van Laack –
In April 2012, a California consumer filed a class action lawsuit against The Hershey Company alleging that Defendant’s Special Dark Chocolate Bars, Special Dark Kisses, Special Dark Cocoa and Cocoa were misbranded because they carried impermissible nutrient content claims, including nutrient content claims about antioxidants and “healthy” claims, and unapproved health claims. Plaintiff’s action under several California laws includes claims for disgorgement, restitution and punitive damages.
Defendant filed a motion to dismiss arguing that the action was precluded by § 310 of the Federal Food, Drug, and Cosmetic Act (“FDC Act”) (21 U.S.C. § 337(a)), which states that “proceedings for the enforcement, or to restrain violations, of the [FDC Act] shall be in the name of the United States,” thus excluding private enforcement. However, in an opinion handed down on November 9, the District Court for the Northern District of California rejected this argument because Plaintiff’s action was based on state law provisions that “mirror the relevant sections of the [FDC Act].”
The Court further concluded that Plaintiff’s claims were not preempted because § 403A of the FDC Act expressly allows states to establish requirements for nutritional labeling identical to the FDC Act. Plaintiff’s action was based on state law provisions that would not require that Defendant undertake food labeling or representations different from the requirements of the FDC Act or FDA regulations.
This decision is yet another reminder that, at least in California, violations of the nutrition labeling requirements of the FDC Act and FDA regulations may result in private actions under state law with far different consequences (including monetary damages) than actions by FDA.