White vs Vanilla

It’s not like they didn’t know any better.

On June 26th a number of people sued Hershey’s Company over deceptive labeling of calling something “White” when similar products were labeled “Milk Chocolate” & “Dark Chocolate”. You can read the details here: https://www.foxnews.com/food-drink/hersheys-co-sued-misleading-white-reeses

First some basic facts:
The FDA writes the rules for what can be called “White Chocolate”, “Milk Chocolate”, and “Semisweet Chocolate” (which has the same definition as “Bittersweet Chocolate”. Certain ingredients, in specific proportions are required to use those protected names. With “White Chocolate” the one unique required ingredient is cocoa butter, it comes from the pod as the cocoa solids you find in the Milk and Semisweet.

Some of you may have noticed that I used the term Semisweet instead of “Dark” above and that is because “Dark” has no FDA protected name & most of what everyone calls ” “Dark” is really Semisweet legally. Dark by itself has no protected status, while the phrase “Dark Chocolate” falls under the protected status only for the use of the word “Chocolate” (basically it means something from the cocoa bean is in there (cocoa solids, cocoa powder..)

Back on track:
So they used the word “White” in their labeling, why?
White is a color, they didn’t say the protected phrase “White Chocolate” so what is the problem?

White is not a flavor, it’s a color when used outside of its protected use. So they didn’t actually break the FDA rules. But why call it white when the flavor is vanilla?

That is the problem, historically companies have been allowed to get away with this confusing labeling, no one enforced it because the federal agencies had other things to do. A competitor of ours (who uses fake chocolate) says their product is dipped in “Milk”, of course it is not milk chocolate, but it is also not cows milk which is the real regulation they are breaking in that case. The FTC/FDA have not enforced the rules, so it is left to consumers (and their lawyers) to get the companies to play by the rules (really they are an easy target as they have lied about what the product is dipped in for over a decade).

So what does it all mean?

  1. White chocolate is a real product (no matter what the uneducated say)
  2. Vanilla is the correct flavor description, why call it white at all?
  3. The Bittersweet chocolate bars are labeled dark (a problem for those that brought the lawsuit because dark chocolate is not legally defined).
  4. Did the company benefit from labeling a vanilla product “white”?
  5. When similar products were labeled “milk chocolate” & “dark chocolate” how is the consumer supposed to know that the vanilla product labeled “white” is not “white chocolate”?
  6. There was no reason to use “white” at all unless they wanted it to be clumped in with the other products that used real chocolate.
  7. A lot of other companies have legal exposure to this same problem, (free money to all those that get there first).

What should be done by the FDA to limit this type of thing?
For the confectionary industry:

  1. Limit the use of “white” when it is not white chocolate.
  2. Change the group defination of “Sweet Chocolate” to “Dark Chocolate”, there are already common sense exclusions that cover things like ‘dark chocolate cake’ so there will be no impact on the marketplace and it closes loopholes used by the unethical.

It’s not the first time Hershey’s has been questioned on it’s use of “White Chocolate”, we questioned them on its use in a Milk product several years ago, questions were sent to the FDA (I really have not seen the product since & look in every grocery store I visit) but I never heard back.

It’s just an educated guess, but I think they will end up paying out on this, it may be a settlement (denying liability), with a nice payout for the lawyers, $5-10k for the named defendants and a coupon for a free product to everyone else.

Hershey and the trade dress are the intellectual property and  trademarks of The Hershey Company.

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