Dark chocolate manufacturers have recently been hit with a wave of putative class action complaints in New York and California federal courts, alleging that the confectioners breached an implied warranty of merchantability and engaged in misleading advertising by failing to disclose the levels of lead and cadmium in their dark chocolate products.  According to the complaints filed against The Hershey Company, Trader Joe’s, Mars, Inc., and most recently Godiva Chocolatier, Inc. and Lindt & Sprüngli, Inc., the plaintiffs allege that the products contain lead and cadmium in excess California’s Maximum Allowable Dose Level (“MADL”)—a “safe harbor” level established under California’s “Prop. 65” law, the Safe Drinking Water and Toxic Enforcement Act of 1986.

The class action mechanism and the claims of false and deceptive advertising are a more novel approach to lead-in-chocolate lawsuits, which have traditionally been litigated in California state court as a violation of Prop. 65.  That law requires manufacturers, distributors, suppliers, and retailers of a consumer product containing certain listed chemicals to provide consumers with a “clear and reasonable” warning if exposure to that listed chemical poses a significant risk of cancer, or reproductive or developmental harm.  Mars, Hershey, Lindt, and Trader Joe’s previously entered into a settlement in 2018 to resolve Prop. 65 claims against the chocolatiers brought by the organization As You Sow.

The current allegations against these companies all cite to a December 15, 2022 report publishing the results of testing on 28 dark chocolate bars from a number of manufacturers for lead and cadmium.  The results purportedly showed that at least 23 of the products exceeded the MADL for either lead or cadmium, and in some cases, exceeded the MADL for both.  Given the rate at which actions have been filed against manufacturers with products in the study, we may see copycat actions filed against the remaining confectioners.  But even with this current momentum, plaintiffs will likely face an uphill battle establishing their fraud-by-omission theory, particularly where the chocolatiers have not violated any FDA regulations, nor made any alleged misrepresentations about their products’ levels of lead or cadmium.