When the blustery winds blow steadily from the north and a dusting of snow carpets the ground, it’s easy to picture a scene from a Hallmark holiday movie – people strolling down a festive street, cups of hot cocoa warming mittened hands. It certainly seems appropriate that National Cocoa Day falls on December 13, the time of year when the days are getting longer and colder and when bakers and confectioners are whipping up dreamy, chocolatey concoctions. As picture-perfect as this scene might be, let’s step away from this winter wonderland, and take a moment to examine cocoa through a legal lens, revealing, in the process, cocoa’s darker side.
Before we embark on our cocoa journey, it might be a good idea to understand what cocoa is. According to the Merriam-Webster dictionary, cocoa is the “powdered ground roasted cacao beans from which a portion of the fat has been removed.” The governmental definition of cocoa set out in the Code of Federal Regulations (CFR) is a bit more involved and requires an understanding of the different ingredients that make up cocoa, and by extension, chocolate. It all begins with cacao nibs. Cacao nib is defined as “the food prepared by removing the shell from cured, cleaned, dried, and cracked cacao beans.” 21 C.F.R. § 163.110(a). Chocolate liquor, another derivative of cacao nibs, “is the solid or semiplastic food prepared by finely finding cacao nibs.” 21 C.F.R. § 163.111(a)(1). Chocolate liquor is one of the primary ingredients of chocolate, whether it be sweet, semisweet, bittersweet, white, or milk. Cacao nibs are also responsible for breakfast cocoa, “the food prepared by pulverizing the material remaining after part of the cacao fat has been removed from the ground cacao nibs.” 21 C.F.R. § 163.112(a)(1). Finally comes cocoa. Cocoa shares a definition and identity with breakfast cocoa but differs in the amount of cacao fat content, less than 22 percent as opposed to not less than 22 percent for breakfast cocoa.
In addition to the description, the CFR also regulates and identifies any optional ingredients that may be added to the cacao products, such as alkali ingredients, neutralizing agents, spices, and salt, and indicates any labeling requirements. Much care needs to be taken when it comes to labels, statements, and claims as these identifiers have brought many a manufacturer into the courtroom. For instance, in Harris v. Mondelez Global LLC, 19-cv-2249 (ERK) (RER) (E.D.N.Y. Jul. 28, 2020), a package of Oreo cookies claimed that the cookies were “Always Made With Real Cocoa.” However, plaintiff consumers alleged that the cocoa was not real because the cocoa used in the cookies was mixed with alkali ingredients. The court held that plaintiffs failed to allege a misleading statement, finding no “’only’ or ‘exclusively’ modifier before the phrase ‘real cocoa.’” Similarly, the court in Beers v. Mars Wrigley Confectionery U.S., LLC, 21-CV-2 (CS) (S.D.N.Y. Feb. 17, 2022), dismissed plaintiff consumer’s claim that the labeling on a box of Dove Bars was misleading. Plaintiff had alleged that the front label of a package of Dove Bars, which read “Silky Smooth Dove Bar®, Vanilla Ice Cream with Milk Chocolate,” was misleading because it did not reveal that the chocolate contained ingredients, namely coconut and palm oils, not found in “real chocolate.” The court found that the ingredient list did not indicate that those ingredients were used in place of cocoa butter or that their mere presence “contaminated the pure product.”
Litigation involving deceptive or misleading labels or statements also involves the source of the cocoa beans. In the past twenty years, litigation has increased against chocolate producers for alleged failures to disclose that the cocoa beans used in their products were farmed by child or slave labor. Many of the cases cite product labeling in support of their claims, such as “Supporting farmers for better chocolate,” Falcone v. Nestle U.S., No. 19-CV-00723-L-DEB (S.D. Cal. July 13, 2023), and “Made with Ethically Sourced Cocoa” Myers v Starbucks Corporation, 536 F. Supp. 3d 657 (C.D. Cal. 2021) or protocols stating that the company “has zero tolerance for the worst forms of child labor in its supply chain.” See Dana v. Hershey Co., 180 F. Supp. 3d 652 (N.D. Cal. 2016). For information about partnerships to help combat child labor practices, please see the website of the Bureau of International Labor Affairs, the Child Labor Cocoa Coordinating Group, and the International Cocoa Initiative.
Next in our legal journey are cases brought to defend the reputation of the manufacturer and protect innocent consumers from presumably inferior brands. In Van Houten v. Hooton Cocoa & Chocolate Co., 130 F. 600 (N.J. Cir. 1904), complainant Van Houten, the manufacturer of a fine grade of cocoa, sued Hooten Cocoa, alleging a similarity between the two names that could lead to confusion. The court agreed and ordered defendants to refrain from using the word “Hooton” to designate their cocoa unless they clearly indicate that the cocoa was not that manufactured by complainant Van Houten. In Walter Baker & Co. v. Baker, 77 F. 181 (C.C, W.D.Va 1896), complainant Walter Baker & Co. filed an action against respondent W.H. Baker to enjoin respondent from using the name “Baker” in connection with chocolate goods made and sold by respondent. To prevent confusion and to protect complainant from the unfair competition, the court ordered respondent to refrain from using certain words and to ensure that the use of the name “Baker” on his products clearly distinguished it from products sold by complainant.
Image by Steve Buissinne from Pixabay.
We hope that you’ve enjoyed our brief roundup of cocoa-related regulations and lawsuits. Now, it’s time for us to truly celebrate National Cocoa Day and savor some of wonderful chocolatey treats. We hope you do too. Enjoy!