Prop 65 Chocolate Litigation

On May 8, 2002, the American Environmental Safety Institute filed a Proposition 65 enforcement action against several chocolate manufacturers, including Hershey, Nestle, Kraft, and See's Candies, Inc. According to the complaint (American Environmental Safety Institute v. Mars Inc., Los Angeles Superior Court no. BC273433) and plaintiff's well-timed publicity blitz (three days before Mother's Day), chocolates expose consumers to lead and cadmium in amounts that require a warning under Proposition 65. The plaintiff's attorney (Roger Carrick, who was the lead defense attorney in litigation over lead in calcium supplements) claims that the lead exposures in chocolate can be reduced by "an order of magnitude" if the industry would take what he claims are minor changes in their practices. Carrick also claims that the lead content in a typical chocolate candy is double the average daily amount of lead ingested in the diet of American consumers.

According to a fact sheet released by the Chocolate Manufacturers Association, the plaintiff's complaint "raises false alarms." It claims that "Chocolate is perfectly safe, according to the FDA, food safety experts and the California Attorney General." It points to the fact that trace amounts of minerals such as lead and cadmium "are found everywhere,' including "virtually all the foods we eat every day." The fact sheet also asserts that the "amount of naturally occurring lead in chocolate is so miniscule that a person is not physically capable of eating an amount of chocolate that would even begin to adversely effect their health," and "most of the naturally occurring lead is in the shell of the cacao bean, which is removed during processing." 

The California Attorney General's office has taken the self-described "unusual" step of publicly commenting that the merits of the chocolate case appear to be lacking, based on the industry's substantial data demonstrating the naturally occurring level of heavy metals in cocoa from which the chocolate is made. The AG's letter stated, "“It is unusual for the Attorney General to publicly state that he has reviewed a matter under Proposition 65 and determined that it is not appropriate to proceed on the claim.  We expect such public statements to continue to be extremely rare.  Nonetheless, because these products are consumed by so many Californians, we think it is important for the public to be aware that the Attorney General’s decision not to commence a civil action in this matter is based on a conclusion that the action would lack merit, after thorough consideration by this office.”

This page last updated 9/15/02