Food Law Stupidity

Let’s Boycott Hershey Chocolates

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Yesterday, I saw headlines about a forced legal settlement, involving the Hershey Company. New York Times story “After a Deal, British Chocolates Won’t Cross the Pond” says it all: “Let’s Buy British Imports, or L.B.B., agreed this week to stop importing all Cadbury’s chocolate made overseas”. Hershey insists that Toffee Crisp packaging too closely resembles Reese’s Peanut Butter Cups, which is ridiculous considering they are very different confections and presented in different shapes.

Same must be said about Yorkie bar, which presumably so resembles York Peppermint Patty that chocolate buyers must confuse one for the other. Of course! People mistake finger-shaped confections with circular patties every day. Don’t you? The argument for Kit Kat is stronger, given name and packaging. But the ingredients are quite different. Have you ever eaten imported chocolate bars? British Kit Kat is creamier—fudgier might be better word—than its U.S. counterpart. 

This morning I hauled down to my local World Market, which sells various imported chocolates, candies, and other delectables. The photos aren’t set up the best, since I snuck around shooting them. Many U.S. retailers frown on such behavior. I also looked at ingredients. For the imported Kit Kat, milk chocolate (66 percent) is first, which means most, followed by wheat flour, sugar, and animal fat. The domestic bar’s major ingredient: Sugar, followed by wheat flour, nonfat milk, and cocoa butter. Chocolate is the fifth ingredient. Names are similar, but taste is not.

Would you really confuse these?

Would you really confuse these?

I am a huge fan of imported chocolates, particularly Aero bar, which I wonder if the settlement babns. Growing up in Northern Maine, we crossed into Canada to buy the bubbly bars.

Any claim Hershey has against the Cadbury imports collapses on price. Go to any speciality shop carrying British bars and they cost much more than the American stuff they supposedly would be confused with. World Market’s Aero price is $1.79, which is same for Yorkie. A Reese’s two-pack is $1.09.

Price is a huge differentiator when buying anything. Who really is going to confuse two chocolate confections that bear some resemblance but which prices vary so much? Based on packaging, the Hersey Kit Kat costs less than the Nestle import (which is a bit bigger): $2.79 versus $5.99.

Similar packaging, different tastes

Similar packaging, different tastes

People who purchase the UK chocolates make a deliberate choice to pay more. The legal settlement means they no longer can choose what satisfies their tastes. What? A British expatriate is suddenly going to buy York Peppermint Patty, which is nothing like a Yorkie, because the latter is no longer sold here? Or Kit Kat, which is more similar but still quite different?

Besides, none of these things are typically sold side by side. I have only ever seen the imports at specialty stores. My local Bed, Bath & Beyond, where there is a World Market inside, sells American- and foreign-made chocolate bars—but nowhere close together. Confusing one for the other would be rather difficult given lack of proximity.

Are bubbly bars banned, too?

Are bubbly bars banned, too?

Besides! U.S. businesses frequently adopt similar packaging as means of benefitting from another brand’s awareness or camouflaging to grab unintended sales. That’s deliberate, which can’t be said of Toffee Crisp and Reese’s, which use orange and yellow packaging outside but are nothing alike within.

Competition by litigation is capitalism at its worse. Boycott Hershey, I say.

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