Hershey, Mars and See’s Candies face heavy metal chocolate lawsuit

As You Sow has sent legal notices to the three firms after testing revealed lead and cadmium traces in some of the companies’ brands. The non-profit claims the toxic heavy metal should have been labeled under California's Safe Drinking Water & Toxic Enforcement Act of 1986 (Proposition 65).

Hershey argues the source of cadmium and lead is naturally-occurring and is precluded by California regulations.

‘Exceeding safe harbor levels’​

As You Sow found heavy metal traces in two Hershey Scharffen bars, Mars’ Dove Dark Chocolate bar and See’s Candies’ Extra Dark Chocolate product after testing each brand two to three times.

Eleanne van Vliet, director of Toxic Chemicals Research at As You Sow, told ConfectioneryNews the brands contained lead or cadmium that at one-serving exceeded the safe harbor level for reproductive harm (or MADL, Maximum Allowable Dose Level), which is 0.5ug/day for lead and 4.1 ug/day for cadmium.

However, the non-profit refused to share the precise lead and cadmium levels found. “Since our notices are the initiation of litigation, we cannot share data without it losing its confidentiality privileges,”​ said van Vliet.

She said her organization wanted consumers to be aware of toxic heavy metals in chocolate bars so they could make informed choices.  “We would prefer that the manufacturers remove the heavy metals from their chocolate products altogether so that children and adults alike can enjoy their favorite chocolate product without having to worry about the presence of heavy metal contamination.”​

Hershey rejects claims​

Hershey’s head of corporate communications Jeff Beckman said that lead and cadmium were naturally present in soil and water with ‘harmless levels’ being absorbed by plants such as fruit, grains and cocoa.

“Prop 65 does not apply to low levels of minerals in food that are naturally occurring,”​ he said. “Prop 65 was designed to avoid ubiquitous warnings on foods due to the existence of minute quantities of minerals that exist naturally in the soil where food is grown.“​

He said all Hershey products met FDA and state standards. “This includes the very strict Proposition 65 standards for lead and cadmium in candy and other products. In fact, our products comply with proposition 65 even when naturally occurring minerals are included.”​

Beckman added that no lead or cadmium was added to the cocoa or chocolate products during processing and manufacturing.

“People have been eating cocoa and chocolate for centuries with no evidence of a single incident of concern regarding these naturally occurring minerals.”​

He called the latest allegations on heavy metals on chocolate “old news” because another group the American Environmental Safety Institute had made the same claims over a decade ago and had its case dismissed.

See’s Candies declined to comment and Mars did not respond to our questions.

In a statement, The US National Confectioners Association said lead and cadmium were naturally-occurring elements that could be found in virtually all foods including cocoa and chocolate. “The FDA and other health authorities have determined that tiny traces of naturally occurring heavy metals in foods are unavoidable and present no public health risk,” ​it said.

Natural or man-made?​

What is the health concern?

As you Sow’s lab tests found that 26 of 42 chocolate tested (62%) contained lead or cadmium  at levels in which one serving exceeds the California safe harbor level for reproductive harm. Lead poisoning is linked to a host of health ailments such as abdominal pain in adults and retarded intellectual development in children. Cadmium can also be toxic at trace levels, damaging several human organs and causing numerous other health defects. A study by Yanus et al. said that more heavy metals entered a child's bloodstreams than an adult's due to lower body weight and higher digestive tract uptake.

As You Sow rejects that the majority of lead and cadmium is naturally occurring and says contamination can occur at a manufacturer’s plant.

The organization referred to a study by University of California (Rankin et al 2005, EHP​​) that found lead levels of less than 0.5 ng/g in unprocessed Nigerian cocoa, but lead levels as high as 230 ng/g for finished goods containing cocoa sold in the US.

In the Rankin study, tested finished products were found to contain a wide variety of lead isotopes, whereas the unprocessed beans had only a narrow range of lead isotopes.

“This finding can lead to only one conclusion - that the lead in the manufactured cocoa products came from human activity before, during, or after the production chain -- which under the Proposition 65 regulation would not be "naturally occurring',”​ said van Vliet.

Can manufactures avoid heavy metal contamination?​

The non-profit said lead and cadmium could linger in the air from manmade industrial processes such as melting, smelting, fossil fuel burning and waste incineration. It added that the water supply used in plants could become contaminated with heavy metal-containing phosphate fertilizer and sewage sludge deposition, which could be eradicated by manufacturers through better water management.

Van Vliet referred to another study by Yanus et al.​​​ 2014 published in Talanta​ found that lead and cadmium concentrations were higher in cocoa powder and butter than in the cacao bean core.

“To our knowledge, chocolate manufacturers have not given any indication/proof/test evidence that the heavy metal is indeed naturally occurring in soil.  We believe that lead and cadmium contamination can be controlled through a thorough assessment by the companies of their suppliers, so they can identify the source(s) of heavy metal contamination and clean the supply chain and manufacturing  processes.” ​