Products Liability Law Reporter

A federal district court held that Hershey Co. may be liable for failing to warn consumers about the health risks presented by glycyrrhizin, a sweetening compound derived from licorice root.

Jane Lavoie-Fern, Sherry Konwaler, Harvey Horowitz, and Marie Bruen alleged they suffered injuries after consuming Hershey’s black licorice candies containing glycyrrhizin. They sued Hershey Co., alleging strict liability and negligence based on the defendant’s failure to warn consumers about glycyrrhizin’s health risks, including abnormal heart rhythm, high blood pressure, swelling, lethargy, and congestive heart failure. The defendant moved to dismiss, arguing that the plaintiffs’ claims are expressly preempted by the Nutrition Labeling and Education Act of 1990 (NLEA).

Denying the motion, the district court noted that under the preemption doctrine, laws are invalidated where they interfere with or are contrary to federal law. Express preemption, the court said, arises when a federal law contains language requiring preemption. Field preemption occurs by implication when Congress regulates a domain so pervasively that it leaves no room for state regulation, the court noted, adding that under conflict preemption, a state law that stands as an obstacle to Congress’s objectives will be invalidated. Citing case law, the court said that in determining whether a statute is preempted, the Congress’s intent is the predominant consideration; however, courts will assume a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest.

Applying these principles here, the court noted that the NLEA amends the Food, Drug, and Cosmetic Act, which tasks the FDA with ensuring that food products are safe and properly labeled. The NLEA contains a broadly worded safety exception providing that the statute’s preemption clause shall not apply to any requirement providing for a warning concerning the safety of food or a food component. Thus, the court concluded, the plaintiffs’ failure-to-warn claims—which allege that the defendant violated Pennsylvania state law by failing to warn black licorice customers about the health risks of glycyrrhizin—are entitled to a presumption against preemption in that such a warning concerned the safety of a food product or one of its components. The court acknowledged the defense argument that the FDA has found glycyrrhizin to be generally regarded as safe (GRAS). Nevertheless, the court said, nothing in the text of the NLEA food safety exception can be reasonably interpreted as limiting the exception’s reach to warnings about foods that have not received GRAS status. Moreover, the statute does not indicate that Congress had intended to save from preemption only those food label warning requirements conforming with the FDA’s prior findings and statements.

The court concluded that the unambiguous text of the safety exception shows Congress’s intent to preserve an important role for states when it comes to safety warnings. In light of this and the defendant’s failure to provide a justified preemption argument, the court said, dismissal here was not warranted.

Ciation: Lavoie-Fern v. Hershey Co., 2022 WL 2671856 (M.D. Pa. July 11, 2022).

Plaintiff counsel: Walter T. Grabowski, Wilkes-Barre, Pa.; and Jonathan E. Neuman, Fresh Meadows, N.Y.