Judge Dismisses White Kit Kat Case Against Hershey

On July 27, Eastern District of New York District Judge Kiyo A. Matsumoto filed an order disposing of plaintiff Eva Rivas’s claims that The Hershey Company misled her into believing that its “Kit Kat White” actually contained white chocolate, causing her to overpay for the candy bar. Judge Matsumoto dismissed the action for lack of subject matter jurisdiction but considered the merits for purposes of determining whether to dismiss with prejudice.  

The plaintiff filed her initial, proposed class action complaint on June 7, 2019, alleging seven state law causes of action. At the parties’ pre-motion conference in November 2019, the plaintiff agreed to drop six of the causes of action and proceed as an individual. The pared-down complaint sought to hold Hershey accountable for violations of New York’s General Business Law §§ 349 and 350, prohibiting deceptive business practices and false advertising, respectively.

First, turning sua sponte to the issue of subject matter jurisdiction, the court held that the plaintiff failed to show both diversity of citizenship and the threshold amount in controversy requirement set forth by 28 U.S.C. § 1332. Though the parties were citizens of different states, “[t]he amount in controversy… [did] not appear to approach anywhere near $75,000.”

Even accepting the plaintiff’s purported overcharge of $1.99 per 1.5 oz candy bar, the plaintiff “would need to have purchased 37,689 Kit Kat White bars in order to accumulate $75,000 in damages.” The court pointed out that this was next to impossible, for a single person would only purchase so many if “she ate nothing but Kit Kat White bars over the course of many years.”

The court briefly considered the plaintiff’s New York law claims under a motion to dismiss standard. As to the misleading advertising claim, the plaintiff claimed that the “Kit Kat White is ‘intended to be viewed and understood as white chocolate,’ not only based on its packaging, but based on point-of sale marketing, retail displays, advertisements, and on the websites of third parties,” citing the websites of Amazon, Dollar General, and Target, which use “white chocolate” in their descriptions of the candy bar.

The plaintiff also alleged that she inferred the Kit Kat contained white chocolate because “it is advertised along with, or displayed next to, the milk chocolate and dark chocolate versions.” However, the court decided as a matter of law that it was not likely that a reasonable consumer would be misled because, “[c]rucially, there is no statement anywhere on Kit Kat White’s packaging, or in any Hershey advertisement cited by Plaintiff, that describes the product as containing white chocolate.”

Furthermore, the court held, the packaging describes the product as “wafers are dipped in crème,” which a reasonable shopper would not confuse for white chocolate. For additional support of its conclusion, the court cited two 2020 Northern District of California cases dismissing similar complaints against the Ghirardelli Chocolate Company for its “Premium Baking Chips Classic White Chips,” and Nestle USA, Inc., for its “Nestle Toll House’s Premier White Morsels.” Thus, failing the amount in controversy requirement, and finding that the plaintiff could not amend to refile a plausible complaint, the court dismissed the proceeding with prejudice.

The plaintiff is represented by Sheehan & Associates, P.C. The Hershey Company is represented by Perkins Coie LLP. The same plaintiff’s counsel filed similar cases alleging misleading advertising regarding vanilla flavoring.