White Kit Kats not misleading, court rules, despite consumer perception

Rivas v. Hershey Co.,  2020 WL 4287272, 19-CV-3379(KAM)(SJB) (E.D.N.Y.
Jul. 27, 2020)

Another not-white chocolate case. The Kit Kat White is
coated “in a white confection coating.” Plaintiff alleged that Hershey marketed
it as an “alternative[ ]” to the dark and milk chocolate versions of the Kit
Kat, and in that context, “the reasonable consumer expects the white variety to
contain white chocolate,” which is “derived from cacao fat.” The package
describes the product as “[c]risp [w]afers [i]n [c]rème.” Retail websites such
as those of Target, Dollar General, and Amazon, which use “white chocolate” in
the description of Kit Kat White bars, and Hershey’s own marketing allegedly suggested
that by advertising/displaying it next to milk chocolate and dark chocolate
versions. Kit Kat White allegedly used to contain white chocolate, but it no
longer does with no change in the package, which allegedly further misleads

It turns out that in 1989, Hershey asked the FDA to
establish a standard to identify white chocolate:

In many cases, the use of fanciful
names obscures the true nature of the product. Consumers who might expect to be
purchasing a “chocolate” or “white chocolate” product may, in fact, be
purchasing a coating-type product manufactured with cheaper ingredients made
from other oils and/or fats and which contain little or no cacao ingredients.

Also, Hershey conducted a marketing survey “to determine the
most common name used by adult candy consumers when shown a variety of
confection products, including a generic white confection bar.” The results
showed that “the majority of candy consumers tend[ed] to identify white
confection as either ‘white chocolate’ specifically or as some variety of

I am disappointed, but not surprised, that the GBL §§ 349
and 350 claims failed, though the court primarily ruled that it lacked subject
matter jurisdiction because the amount in controversy was too low. Still,
amendment was futile because (despite the evidence of what consumers actually think)
the court held that a reasonable consumer acting reasonably could not have been
misled because Hershey never itself describes the product as containing white
chocolate. If “diet” on soda can’t be misleading to reasonable consumers about
whether it would help with weight loss, then “white” can’t be misleading to
reasonable consumers about whether candy contains white chocolate. (Not
impressed with the logic. While no soda can ensure or necessarily even increase
the chances that you lose weight, plenty of candy does contain white chocolate.
Relatedly, the cost-benefit analysis might be very different: if “diet” is an
efficient way of communicating “zero calorie” (itself probably something that
courts shouldn’t assume on a motion to dismiss, but whatever) then suppressing
it has costs to consumers, but if they have trouble distinguishing “white” and “white
chocolate” then the costs of deception could be much higher here.)

Anyway, the dictionary says that white means a color, and
the Kit Kat White is white (ish). Thus, there’s no falsity, even when the Kit Kat is
put in context with other, chocolate-containing Kit Kats. “Even if Plaintiff’s
allegation may have been plausible if the packaging only included the words ‘Kit
Kat White,’  the product is also clearly
described as ‘[c]risp wafers [i]n [c] rème.’ … A reasonable consumer would not
be misled into believing that the wafers are dipped in white chocolate when the
packaging does not mention chocolate, and states that the wafers are dipped in
crème, which is not the same as white chocolate.” But why not? The court has disregarded the context, but context is how implication works.


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