A federal judge has melted a class action alleging Trader Joe’s concealed metal toxins in dark chocolate products.
U.S. District Judge Ruth Montenegro on March 27 granted summary judgment to the boutique grocery retailer.
That ruling followed earlier dismissal of claims under California law and the latest development in broader litigation efforts against chocolate sellers all rooted in similar alleged misrepresentations.
According to Montenegro, consumers allege eight dark chocolate bars contain, or carry a material risk of including, lead, cadmium and arsenic, without acknowledgement on labels. Her summary judgment ruling affects allegations of violating consumer protection laws in New York, Washington and Illinois.
Trader Joe’s argued the laws under which plaintiffs sue require alleging it had exclusive knowledge of the presence of the metals in the chocolate. It further said Illinois law doesn’t allow claims of pure omission. The plaintiffs countered by arguing the Illinois fraud claim isn’t precluded and more broadly that what Trader Joe’s knew is a factual dispute that belongs before a jury and cannot be resolved on summary judgment.
Montenegro said there is no dispute over whether the labels or corporate website reference the metals, whether Trader Joe’s tests for those metals or if the products actually contain the metals, as reflected in 2022 Consumer Reports testing. Although, she added, Trader Joe’s “notes that these results indicate every dark chocolate bar tested across 20 brands contained heavy metals and that the levels in defendant’s products complied” with a California law and a 2018 consent judgment.
Instead, Trader Joe’s argued the actual presence or risk of inclusion of the metals “was information reasonably obtainable and easily discoverable because it was widely publicized over decades,” Montenegro wrote, adding the retailer “submitted as exhibits a variety of articles, studies, product test results posted online, regulatory guidance documents and litigation filings that publicly identify the presence of heavy metals in the broader food supply, chocolate, candy and dark chocolate, including some of defendant’s dark chocolate products.”
Montenegro noted the allegations against Trader Joe’s don’t imply knowledge of specific quantities of the metals in question, but whether the bars contained — or could have — any amount at all. Without addressing all the defense evidence individually, Montenegro said the earliest published articles stem from 2002 while there are several from 2014 through 2022 discussing metals in chocolate goods and specifically dark chocolate.
“Whether information on the presence of heavy metals in the products was reasonably obtainable (or easily discoverable) does not depend on what individual plaintiffs were or were not aware of, what consumers said in response to a survey inquiring about what specific labels suggested, or whether (Trader Joe’s) disclosed test results to individual customer inquiries,” Montenegro wrote. “Rather, it turns on what information was reasonably obtainable or easily discoverable by consumers about the presence of heavy metals in dark chocolate.”
As to whether Trader Joe’s had any “exclusive knowledge,” Montenegro said no reasonable jury would conclude that to be true. Due to widespread publication, test results and reporting on those test results, she said the plaintiffs couldn’t show Trader Joe’s hid knowledge from its customers to reach the legal threshold of deceptive practices.
Specific to the Illinois Consumer Fraud and Deceptive Business Practices Act, Montenegro said the complaint doesn’t allege any Trader Joe’s statement conveying a material omission that plaintiffs relied on when purchasing dark chocolate bars.
“The products’ labels are not a statement or communication for purpose of an ICFA omission because there is nothing affirmative stated on the label on the topic at issue,” Montenegro wrote. “Here, because plaintiffs have only identified a ‘general failure to disclose’ the presence of heavy metals and not ‘an omission from a communication’ plaintiffs’ ICFA claim cannot proceed.”
Plaintiffs have been represented in the lawsuit by attorney Rebecca A. Peterson and others with the firm of Lockridge Grindal Nauen, of Minneapolis; Lori G. Feldman and others, of George Feldman McDonald, of New York and Florida; L. Timothy Fisher and Luke Sironski-White, of Bursor & Fisher, of Walnut Creek; Jonathan M. Jagher, of Freed Kanner London and Millen, of Conshohocken, Pennsylvania; Daniel E. Gustafson and others with the firm of Gustafson Gluek, of Minneapolis; Kenneth A. Wexler and others with Wexler Boley & Elgersma, of Chicago; Stephen R. Basser, of Barrack Rodos & Bacine, of San Diego; Steven A. Kanner and others, with Freed Kanner London and Millen, of Bannockburn; Nick Suciu, of Milberg Coleman Bryson Phillips Grossman, of Bloomfield Hills, Michigan; Mark S. Reich and others, with Levi & Korsinsky, of New York; Jason P. Sultzer and others, with The Sultzer Law Group, of Poughkeepsie, New York; and Kevin Laukaitis, of San Juan, Puerto Rico.
Trader Joe's was represented by attorneys Dawn Sestito, Danielle R. Feuer and Martha Hutton, of the firm of O'Melveny & Myers, of Los Angeles and Washington, D.C.