Suit Tying Hershey’s Twizzlers to Heart Problems Can Go Forward

Hershey Co. must keep defending against a lawsuit alleging it failed to warn that black licorice candies like Twizzlers and Good & Plenty can cause heart problems and other ill effects, after a US judge in Pennsylvania said federal food labeling law doesn’t block the claims.

Jane Lavoie-Fern, Sherry Konwaler, Harvey Horowitz, and Marie Bruen allege that they ate Hershey’s black licorice candies and suffered various health issues.

Black licorice contains glycyrrhizin, a sweetening compound derived from licorice roots. At certain levels of consumption, glycyrrhizin has been shown to cause abnormal heart rhythms, mineral imbalances, high blood pressure, swelling, lethargy, and congestive heart failure, Lavoie-Fern and the others said.

Hershey argued the state-law claims alleging the candies were dangerous and defective because they lacked health warnings, are barred by the federal Nutrition Labeling and Education Act. The federal law expressly preempts any state regulation that’s not identical to a federal one.

According to Hershey, the plaintiffs’ claims are preempted because they seek to use state law to require warnings that go beyond what’s required by the relevant federal regulations.

The company’s argument was rejected by the US District Court for the Middle District of Pennsylvania.

Hershey failed to overcome a presumption against preemption, which applies here because food safety regulation is traditionally a state regulatory issue, the court said Monday.

And even assuming that the claims fall within the scope of the NLEA’s express preemption provision, they are saved from preemption under the law’s safety exception, Judge Sylvia H. Rambo said.

The exception says preemption doesn’t apply to “any” state-law requirement that provides for a warning concerning “the safety of the food or component of the food.”

The exception applies even though the Food and Drug Administration has found glycyrrhizin to be “generally regarded as safe,” the court said.

Nothing in the text of the safety exception, or its surrounding provisions, can be reasonably interpreted as limiting the exception’s reach to warnings about food and food additives that haven’t received that GRAS status, the court said. Substances with GRAS status don’t have to undergo premarket review.

Holland Brady & Grabowski PC and Jonathan Ellery Neuman of Fresh Meadows, N.Y., represents the plaintiffs. Faegre Drinker Biddle & Reath LLP represents Hershey.

The case is Lavoie-Fern v. Hershey Co., M.D. Pa., No. 1:21-cv-01245, 7/11/22.