Among the treats made by the Hershey Company are Reese’s Peanut Butter Cups. It sells these in three varieties: milk chocolate, dark chocolate, and “white.” This complaint alleges that the company intentionally misleads consumers to think that the “white” variety is made with white chocolate, when that is not the case.
The complaint says, “Where a reasonable consumer is presented with ‘milk’ and ‘dark’ varieties of a chocolate product, and another version of that (chocolate) product is identified only as ‘White,’ they will refer to and understand that product to be or consist of ‘white chocolate,’ and expect it to contain cacao-derived ingredients.”
However, the complaint claims, the White Peanut Butter Cups do not contain any cacao products. It reproduces the ingredient panel, which lists “Peanuts; Sugar; Vegetable Oil…; Skim Milk; Dextrose; Corn Syrup Solids; Lactose (Milk); Contains 25 or Less of: Salt; Lecithin (Soy); TBHQ and Citric Acid, to Maintain Freshness; Vanillin, Artificial Flavor; PGPR.”
Under the law, the term white chocolate is “the solid or semiplastic food prepared by intimately mixing and grinding cacao fat with one or more of the optional dairy ingredients … and one or more optional nutritive carbohydrate sweeteners.”
White chocolate must contain a minimum of 20% cacao fat. If it does not, it is merely a confectionary or candy and cannot be called white chocolate.
The omission of any modified word after the term “White” on the wrapper is deliberately deceptive, the complaint says; it allows consumers to believe, falsely, that the White product, like the other varieties, contains chocolate. Hershey’s sells the White product alongside the chocolate versions instead of in a non-chocolate context.
The complaint reproduces entries from various websites to demonstrate that people do misunderstand the White designation. CandyPros.com calls them “Reese’s Peanut Butter Cups White Chocolate…” CandyWarehouse.com calls them “Reese’s White Chocolate Peanut Butter Cups…” as does CandyFavorites.com.
The complaint alleges that Hershey’s could ask to have these listings changed if it wanted to correct the misunderstanding.
This is an instance of the current epidemic of “food fraud,” the complaint claims. While a lot of food fraud involves the inclusion of harmful or less healthy ingredients, it can also include non-harmful alterations and misrepresentations. In the case of fake white chocolate, the complaint says, this includes replacing more valuable ingredients, like cocoa butter. with cheaper ones, like vegetable fats, or adding another substance to hide inferior ingredients, for example by adding a color to make the product look more like the real thing.
The class for this action is not fully defined in the complaint, but it includes consumers from all fifty states, with subclasses for different states.