Mars, Hershey and others settle heavy metal chocolate lawsuit

By Douglas Yu contact

- Last updated on GMT

Big chocolate companies argue the source of lead and cadmium is naturally occurring through soil and water. ©GettyImages/grafvision
Big chocolate companies argue the source of lead and cadmium is naturally occurring through soil and water. ©GettyImages/grafvision

Related tags: cadmium, Food safety, California, Mars, Hershey, Barry callebaut, Lindt, Nestle

A California Superior Court judge has approved a settlement resolving claims over whether certain levels of lead and cadmium in chocolate require warning labels under California’s Prop 65 law.

The settlement came around three years after the consumer advocacy group As You Sow filed a lawsuit​ against several big players in the chocolate industry, including Hershey, for containing lead and cadmium traces in their products.

As You Sow’s director of Toxic Chemicals Research, Eleanne van Vliet, previously told ConfectioneryNews that one serving of the tested brands “exceed the safe harbor level for reproductive harm,”​ which is 0.5ug/day for lead and 4.1 ug/day for cadmium (according to Prop 65).

The organization further claimed that the heavy metal contamination could occur at a manufacturer’s plant, while defendant companies argued the source of lead and cadmium is naturally occurring through soil and water, hence it is not beholden to the law.

What does the settlement include?

The settlement, which was negotiated by As You Sow and the major companies in the US chocolate industry over the past year, requires a joint study to investigate and report on the main sources of lead and cadmium, As You Sow said in a statement.

Some of the companies who are part of the negotiation include Barry Callebaut, Blommer Chocolate, Cargill, Hershey, Lindt, Mars, and Nestlé.

“The experts who conduct the study will also make findings and recommendations on feasible measures that may be taken, if any, to meaningfully reduce levels of lead and cadmium found in chocolate products,”​ it added.

As You Sow pointed out the experts’ findings will be available to the public, and the settlement agreement would set thresholds for determining when Prop 65 warnings will be required for chocolate products “based on their percentage of cacao content and their levels of lead and cadmium”.

The FDA said dark chocolate tends to have higher lead levels than milk chocolate because chocolate liquor is the main source of lead in chocolate products.

‘Opt-in’ program for additional companies

The court also authorized an “opt-in”​ program that will allow additional companies that make or provide chocolate products for sale in California to become parties to the settlement “if they are willing to comply with the terms of the settlement,”​ said As You Sow.

Details regarding when companies can apply for the program are yet to be disclosed.

Jerry Hagedorn, EVP of business development at Barry Callebaut, said, “this settlement will help avoid consumer and retailer confusion while establishing a clear set of guidelines for chocolate and cocoa companies to follow when selling their products in California.”

Hagedorn, who is the current chair of the National Confectioners Association’s (NCA) Chocolate Council is the major force behind the settlement with As You Sow. He recently received a distinguished service award at NCA’s State of the Industry Conference in Miami, FL.

"Working together, all of the parties involved are putting consumers first. We at the chocolate and cocoa companies take food safety and product quality very seriously, and look forward to working with scientific experts on this issue,"​ Hagedorn said.

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