Trading standards

Dark chocolate lover loses case against Mondelēz over Green & Black’s cacao label

By Anthony Myers contact

- Last updated on GMT

A Green & Black label with the cacao claim on the front. Pic: CN
A Green & Black label with the cacao claim on the front. Pic: CN

Related tags: Mondelez International, Cocoa, Cacao, Labelling

A US federal judge has dismissed a lawsuit, with prejudice, against Mondelēz International that alleged the company misleadingly labelled its dark chocolate products as being made with cacao, instead of cocoa.

The 21-page suit against Mondelez International and Mondelez Global was filed in February this year, claiming that although the front labels of Green & Black’s Organic Dark Chocolate and Pure Dark Chocolate state the chocolate contains 60, 70 or 85 percent cacao, the products’ back labels disclose the principal chocolate ingredient is not cacao, but cocoa.

It alleged that plaintiff CK Lee purchased Green & Black chocolate because the front label claimed the products have a high level of cacao, while the ingredient statements listed cocoa as the primary chocolate ingredient.

US District Judge Lewis Liman of the Southern District of New York disagreed, ruling that it is “implausible​” that a reasonable consumer seeing the term ‘cacao’ would necessarily infer that the product contains only the unprocessed form of cacao.

In his claim, Lee professed to be a “lover of dark chocolate​” who has purchased the products for years, both for their taste and for health benefits.

His most recent purchase of one of the products occurred on 21 November, 2021, when he purchased the ‘Dark 70%’ variant of Green & Black’s Organic Dark Chocolate.

Up to this point, Lee had taken the products’ front labels at face value, but after his November purchase, he examined the ingredients statement and saw that it did not list ‘cacao’ as an ingredient, but ‘cocoa’.

He alleged that Defendants’ products had significantly less value than was warranted by their representations because they did not deliver the qualities promised. Those misrepresentations misled him as to the products’ contents, depriving him of the benefit of his bargain and injuring him in an amount up to the purchase price.

He further alleged he would not have been willing to pay the sum he paid had he known the product was mislabelled.

In contrast to the products at issue, Lee also pointed in his claim to a chocolate bar product from a different chocolate manufacturer that represents on the front label that the product is made from ‘cocoa’, not ‘cacao’.

Cacao's health benefits

He argued that cocoa is an ‘inferior and highly processed’ derivative of the cacao bean that has been stripped of cacao’s health benefits, including antioxidants and heart-protecting properties.

Lawyers from Baker McKenzie representing Mondelēz International filed a motion to dismiss, arguing the labels are accurate because cocoa is made from cacao. They maintained the Green & Black products were labelled in accordance with Food and Drug Administration labelling standards.

Nowhere in the standard of identity for ‘cacao products’ does the FDA address the ingredients necessary for a product to be labelled as ‘cacao​,’” the judge wrote in his ruling.

The regulations instead show that the FDA often conflates cacao and cocoa… Both chocolate liquor and cocoa powder are derived from the cacao plant, and since the ingredient lists state that the products contain both chocolate liquor and cocoa powder, it follows that the products themselves are made from cacao​.” 

In his summary, the judge went on to say, “importantly, defendants have not identified any specific requirement for a product to be named ‘Cacao’ or any percentage composition thereof that distinguishes it from ‘cocoa’, the underlying basis for Plaintiff’s misrepresentation claim.”

Lawyers representing the plaintiff said they plan to re-file the consumer protection case in state court.

Case 1:22-cv-01127-LJL

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
C.K. LEE, on behalf of himself and others similarly situated,
Plaintiff,
-v-
MONDELEZ INTERNATIONAL, INC. and
MONDELEZ GLOBAL, LLC,
Defendants.

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