PFAS Lawsuit Against Hershey Faces Legal Pushback Over Scientific Claims

The Grizzly Report stated that all four labs found heightened traces of PFAS in various Hershey products, and in one Ferrero product, while finding none or negligible amounts in products manufactured by Nestlé. As soon as the Grizzly Report was published, Hershey was hit with a flurry of lawsuits alleging the presence of unsafe amounts of PFAS in the packaging of Hershey’s products. The cases were later consolidated, and plaintiffs filed a consolidated class action complaint.

Hershey has now moved to dismiss the consolidated class action on various grounds, including lack of standing based on the plaintiffs’ failure to adequately allege injury-in-fact, let alone an injury caused by Hershey’s conduct. In support of this argument, Hershey pointed to, among other things, the plaintiffs’ misplaced reliance on the results of the “dubious internet report,” i.e., the Grizzly Report, as well as the plaintiffs’ own unsubstantiated testing.

To undermine the reliability of the Grizzly Report, Hershey pointed to a click-through disclaimer preceding access to the Report, which states that the Report and all statements contained within the Report are opinions of Grizzly and are not statements of fact and that certain “Grizzly Research LLC Associated Persons” have a short position in Hershey’s stock and would realize significant gains in the event the prices of Hershey’s securities decline. Hershey also questioned the test methods used by Grizzly’s labs, some of which tested only for the presence of fluorine, which has been found to be unreliable by some courts since it can include compounds that are not PFAS.

Hershey also argued that the testing was not conducted on products the plaintiffs actually purchased. Nor did plaintiffs or Grizzly identify the name of the testing labs, the purchase or testing dates for the products, or any facts sufficient to demonstrate that the results were reliable and representative of the plaintiffs’ purchases.

Hershey further noted that the plaintiffs’ own test results were inconsistent with those in the Grizzly Report. Specifically, while the Grizzly Report stated that one lab detected parts per million (ppm) levels of six PFAS compounds in Hershey’s packaging, the plaintiffs’ testing revealed trace, parts per trillion (ppt) levels of different PFAS compounds in certain packaging, which is more than a million times smaller than the Grizzly Report results. Hershey also argued that the trace, ppt levels of PFAS compounds were more likely caused by incidental environmental contamination that occurred after the products left Hershey’s control, such as during retail handling, transportation, or the lab testing itself. (PFAS are known to be ubiquitous in the environment, including indoor dust.)

Hershey’s motion builds on the success of other similar motions to dismiss in the PFAS litigation landscape. While other defendants have won arguments on lack of standing, this may be one of the first to challenge a sloppy and biased third-party report and introduce the notion of environmental contamination, including in the lab.

The ArentFox Schiff Consumer Products group will follow and report back on the response to and outcome of Hershey’s motion and is available to answer any questions you may have. Please feel free to reach out to the authors or any attorney on our Consumer Products team.