Health Law Daily Wrap Up, LABELING AND PACKAGING (FOOD, DRUGS & MEDICAL DEVICES)—S.D. Cal.: Trader Joe’s defeats class action over heavy metals in its chocolate, (Apr 4, 2025)

By Martin A. Steinberg, J.D.

There has been extensive media coverage since 2002 about the presence of lead, cadmium, and arsenic in dark chocolate.

The federal district court in San Diego granted summary judgment to Defendant Trader Joe’s Company in a class action brought on behalf of purchasers of specific Trader Joe’s dark chocolate bars. Plaintiffs alleged that the dark chocolate bars contained, or had a material risk of containing, lead, cadmium, and arsenic (collectively, “Heavy Metals”) that were not disclosed on the package labels. The court noted that Plaintiffs’ claims required a showing that the information Defendant failed to disclose was possessed by the business alone or that the information could not have been reasonably obtained or was not easily discoverable by a consumer. Plaintiffs could not prove a deceptive act based on Defendant’s omission because the information that the Products contained or had a material risk of containing Heavy Metals was easily discoverable (In Re Trader Joe’s Company Dark Chocolate Litigation, No. 3:23-cv-00061-RBM-DTF (S.D. Cal. Mar. 27, 2025)).

Background. Plaintiffs identified eight dark chocolate bars as containing or having a material risk of containing Heavy Metals not disclosed on the packaging. The following facts were not in dispute: (1) the Products’ labels or Defendant’s website did not disclose the presence or material risk of the presence of Heavy Metals; (2) Defendant did not test for Heavy Metals in the Products, instead relying on its vendors to test for regulatory compliance; (3) Defendant did not publicly share test results, disclose test results in response to customer inquiries, or tell consumers that it does not itself test the Products; (4) the Products contained or had a material risk of containing Heavy Metals based on Consumer Reports test results in 2022, although these results indicated every dark chocolate bar tested across 20 brands contained Heavy Metals and that the levels in Defendant’s Products complied with California Proposition 65 and the 2018 Consent Judgment.

On March 27, 2024, the court granted in part Defendant’s Motion to Dismiss the Consolidated Class Action Complaint (CAC) and dismissed Plaintiffs’ claims for: violations of California’s Unfair Competition Law (UCL), California Business & Professions Code §§ 17200 et seq.; violations of California’s False Advertising Law (FAL), California Business & Professions Code §§ 17500, et seq.; violation of California’s Consumers Legal Remedies Act (CLRA), California Civil Code §§ 1750, et seq.; Breach of the Implied Warranty of Merchantability; and Unjust Enrichment. The court granted Plaintiffs leave to amend these claims. However, they chose to stand by the CAC rather than amend it.

Plaintiffs proceeded on the claims of the CAC that were not dismissed: (1) violation of Deceptive Practices Act, New York General Business Law (GBL) § 349; (2) violation of New York GBL § 350; (3) violation of Washington’s Unfair Business Practices and Consumer Protection Act, RCW §§ 19.86.010, et seq. (WCPA); and (4) violation of Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Illinois Compiled Statute §§ 505/1, et seq. (ICFA).

The Defendant filed its Motion for Summary Judgment on August 26, 2024, focusing on two key issues. (1) Whether the Defendant had exclusive knowledge that the dark chocolate bars contained or had a material risk of containing Heavy Metals, a requirement for each state law claim. (2) Whether the Plaintiffs could pursue an omission claim under the ICFA, as Illinois state law does not permit a pure omission claim.

Heavy Metals. The court concluded that the many articles, test results, and reporting on the test results and prior litigation established that information on the presence of Heavy Metals in chocolate was reasonably obtainable, easily discoverable, and available to consumers for many years, including at the time the Plaintiffs were purchasing Defendant’s dark chocolate Products. Plaintiffs’ claims are based on Defendant’s failure to disclose that the Products contained or had a material risk of containing Heavy Metals. Like other cases decided on summary judgment concerning Heavy Metals in food, Plaintiffs’ claims are not based on Defendant’s failure to disclose any “specific quantities of heavy metals present,” high levels of Heavy Metals in the Products, or even that the levels exceed any regulatory or safe threshold. When the basis for the omission is that the Products contain or have a material risk of containing Heavy Metals, the precise question is whether Defendant had exclusive knowledge of the presence or material risk of heavy metals in the Products.

The Defendant submitted more than 60 exhibits dating back to 2002 that discussed the presence of Heavy Metals in chocolate products, with a particular focus on dark chocolate. The various articles repeatedly reported on test results regarding the presence of Heavy Metals in chocolate products. Included were 2017 Consumer Reports test results showing that chocolate, and dark chocolate in particular, contained Heavy Metals and identified Defendant’s dark chocolate products specifically.

The court found that two cases addressing Heavy Metals in foods were particularly persuasive. In Paradowski v. Champion Petfoods USA, Inc., No. 22-962-CV, 2023 WL 3829559 (2d Cir. June 6, 2023), the Second Circuit found the presence of Heavy Metals in pet food was reasonably obtainable based on studies demonstrating seafood contains high concentrations of Heavy Metals and the products at issue listed fish-based ingredients. The court additionally relied on the publication of guidelines regarding acceptable concentrations of Heavy Metals in dog food as “demonstrating that the public has been aware of the occurrence (or the risk) of this phenomenon for some time.”

The second case, In re Plum Baby Food Litig., Case No. 4:21-CV-00913-YGR, 2024 WL 1354447 (N.D. Cal. Mar. 28, 2024), was also instructive because the court relied, in part, on a similar collection of articles to find the presence of Heavy Metals in the products at issue had been covered by the media before the lawsuit was filed. The articles and other publications submitted by Defendant here establish that the presence of Heavy Metals in chocolate has been widely publicized.

Exclusive knowledge. Plaintiffs could not prove a deceptive act based on Defendant’s omission because the information that the Products contained or had a material risk of containing Heavy Metals was “easily discoverable.” No reasonable jury could find that the presence of Heavy Metals or the risk of their presence in the Products was exclusively within the defendant’s possession, or that a consumer could not reasonably obtain such information, given that the presence of Heavy Metals has been well-publicized for many years.

To succeed on their New York claims, Plaintiffs needed to show that: (1) Defendant’s conduct was consumer-oriented; (2) Defendant’s act was deceptive or misleading in a material way; and (3) Plaintiffs suffered injury as a result of the deception. When evaluating whether an act was deceptive or misleading, New York courts apply an objective standard, asking whether the representation or omission is “likely to mislead a reasonable consumer acting reasonably under the circumstances.” When claims are based on omissions, as are the Plaintiffs’ claims, they must demonstrate that the business alone possesses material information relevant to the consumer and failed to provide this information, or that the Plaintiffs could not reasonably have obtained the relevant information they now claim the Defendant was unable to provide.

The court did not need to and did not find that information about the presence of Heavy Metals in each specific chocolate bar identified by Plaintiffs was reasonably obtainable, although some of it was. The reasonable obtainability of information on the risk of and presence of Heavy Metals in the category of products was sufficient.

To prevail on the Washington WCPA claim, Plaintiffs needed to prove (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person’s business or property, and (5) causation. Accordingly, for the Defendant to be obligated to disclose the omission for purposes of the deceptive act element, the omitted information had to have been known to the Defendant but not easily discoverable by the buyer. Plaintiffs could not prove a deceptive act based on the Defendant’s omission because the omitted information was readily discoverable.

Finally, to prevail on an Illinois ICFA claim based on deceptive conduct, Plaintiffs must show: (1) a deceptive act or practice by the Defendant, (2) the intent that the Plaintiffs rely on the deception, (3) the occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the Plaintiffs that was (5) a result of the deception. Here, there was no deception because information available to consumers dispelled any deception based on the omission of the presence of Heavy Metals in the Products.

The court also found that the Plaintiffs had no viable omission-based ICFA claim because no statement conveyed a material omission upon which the Plaintiffs relied. The Products' labels were not a statement or communication intended to address an ICFA omission, as nothing affirmative was stated on the label regarding the topic at issue. Because Plaintiffs had only identified a general failure to disclose the presence of Heavy Metals and not “an omission from a communication, Plaintiffs’ ICFA claim cannot proceed.

The Case is No. 3:23-cv-00061-RBM-DTF.

Judge: Montenegro, R.

Attorneys: Charles E. Schaffer (Levin Sedran & Berman LLP) for Thomas Ferrante. Alexandra M. Honeycutt (Milberg Coleman Bryson Phillips Grossman, PLLC) for Valerie Morrison. Dawn Sestito (O'Melveny & Myers LLP) for Trader Joe's Co.

Companies: Trader Joe's Co.

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