Thanks to a recent lawsuit brought by the Hershey chocolate company, it is effectively illegal for Americans to import and sell chocolate made by Cadbury in the United Kingdom because, as Hershey's lawyers argued, British-made Cadbury chocolate infringes on copyrights owned by Hershey (which also owns the licensing rights to make and sell Cadbury-brand chocolate in the United States).
As a result, angry chocolate lovers decided to boycott Hershey (and are promoting the boycott through social media, including the hashtag campaign #BoycottHershey on Twitter). However, in the U.S., supporting English Cadbury via boycotting Hershey also requires you to boycott American Cadbury since Hershey owns it.
The confusing story started last summer, when Hershey filed suit against a New Jersey-based import company called LBB [Let's Buy British] Imports, trying to make LBB stop importing certain foreign brands of chocolate candy which, according to Hershey, threatened certain Hershey-held copyrights.
For example, Hershey claimed that a Nestle-brand candy bar called Toffee Crisps, which is very popular in England, might be mistaken for Reese's Peanut Butter Cups, because the two products are both sold in wrappers with orange-and-yellow color schemes.
The solid-chocolate “Yorkie” bars popular in Britain might be mistaken for chocolate-covered York Peppermint Patties, according to Hershey. And of course, the “Cadbury” chocolate bars made and sold in the U.K. might be mistaken for the Hershey-produced Cadbury bars sold in the U.S.
No Yorkies allowed
Late in January, LBB settled its lawsuit with Hershey by agreeing to stop importing all forms of foreign-made Cadbury chocolate; Rolo and KitKat bars made in Britain; Yorkie bars; Toffee Crisps and Maltesers malted milk balls.
When the New York Times reported the settlement, it spoke to Nicky Perry, a British expat who lives in New York and runs a British candy shop called Tea and Sympathy. Perry told the Times that “Cadbury’s is about half of my business, and more than that at Christmas. I don’t know how we’ll survive.”
Perry tried importing the chocolate on her own, but doing so was very complicated and time-consuming, since it required dealing with three different complicated bureaucracies: the Food and Drug Administration, the Department of Agriculture and Customs. At any rate, as the Times noted, “because Hershey’s is looking to stop the sale of all Cadbury’s chocolate and the other bars in the United States, it might not help her to import the chocolate herself.”
Terry took to her business' Facebook page to warn Tea and Sympathy's customers that
Due to legal action by the so called chocolate maker Hersheys, we can no longer import the real Cadbury chocolate from England. They want us to sell their dreadful Cadbury approximation but we can't in good conscience sell you such awful chocolate when we have made our reputation on selling you the yummy real English stuff.
In addition to banning the good Cadbury they have also banned Yorkie bars because they stated that people might confuse them with York Peppermint Patties! As if! To add insult to injury they have also banned Toffee Crisp because they contended that the packaging was too similar to Reese's Peanut Butter Cups! May we politely suggest that if you think Toffee Crisps look like Reese's Peanut Butter Cups your eyesight is a much bigger problem than your chocolate bar confusion.
Other criticisms of Hershey were even harsher. Back in Britain, the Telegraph told its readers that the chocolate Hershey sold in America “tastes like watery sour milk and looks like dried mud.”
Here in the U.S., BGR.com published a story about the brouhaha and described it as “Hershey's evil plan to ruin good chocolate for everyone.”
In fact, pretty much the only people who had anything good to say about the chocolate-import ban were Hershey corporate spokespeople such as Jeff Beckman, who said in a press release that:
“It is important for Hershey to protect its trademark rights and to prevent consumers from being confused or misled when they see a product name or product package that is confusingly similar to a Hershey name or trade dress …. We make delicious chocolate products that are formulated for the taste preferences and expectations of consumers in each region of the world where we do business.”
Critics argue that the difference is more than a matter of labeling, claiming that American and British chocolates are made according to completely different recipes. But Hershey's Beckman said that's not so.
"At Hershey, we use the same formulation that the Cadbury family developed when they first brought Cadbury bars to the United States in the 1970s. They varied from the UK formula in terms of using only pure cocoa butter because they wanted to be able to label the product as 'chocolate' by meeting the U.S. FDA standard of identity. We have maintained this Cadbury family recipe for 27 years ago," he said in a statement to ConsumerAffairs.
Beckman also disputed other claims made by Hershey's critics:
In the U.S., only genuine cocoa butter is required to call the product “milk chocolate” so we do not use vegetable oils in our version because if we did, we couldn’t call it milk chocolate because of the FDA standards. In the UK, other vegetable oils, such as palm and shea, can also be used.
We have a stricter milk chocolate standard in the United States because you cannot use these less expensive vegetable oils and still call it “milk chocolate.” The UK Cadbury bars cannot be called milk chocolate in the U.S. On the other hand, our U.S. product does meet the standard for the UK and the EU and can be called milk chocolate there.
The base ingredients for our U.S. Cadbury bars – the mixture of chocolate, sugar and milk called “chocolate crumb” that are at the core of any chocolate bar – actually come from the Cadbury factory in the British Isles, that same factory that supplies the crumb for UK Cadbury bars. It’s the same crumb. This is why the amount of chocolate, sugar and milk are identical in both the U.S. and UK versions. And it’s the exact same milk in both bars that comes from the British Isles. Because we import our crumb from Europe and use only genuine cocoa butter, this makes our Cadbury bar one of our most expensive recipes.
The reason for the difference in the order of milk and sugar on the U.S. and UK labels is because of the difference in labeling requirements. In the UK, milk weight is measured in its heavier liquid form and the U.S., we are required to measure milk weight in its lighter evaporated form. If UK Cadbury bars were labeled to U.S. standards, the ingredients would be in the same order on both labels. The amount of milk, sugar and chocolate are exactly the same.
The UK bars are not legally labeled for retail sale here in the United States. Because we use only genuine cocoa butter, the amount of cocoa solids are actually higher in our U.S. version, but we do not label for cocoa solids as they do in the UK because of the U.S. requirement to use only cocoa butter eliminates the need to ensure a certain minimal level of “cocoa solids” as they require in the UK. One again, it’s a matter of the difference in labeling requirements and standards.
Also, comments about "preservatives" in the Hershey version also are not accurate. Both versions of the product use the same emulsifiers. Because of different labeling requirements, we say PGPR and soy lecithin on our label. UK bars list E442 and E476 on the label. E442 is lecithin and E476 is PGPR.
When we bought the U.S. Cadbury business, we also acquired the Cadbury family’s U.S. Cadbury factory and we still make our Cadbury bars in that same factory using the same U.S. formula that the Cadburys created in 1970s.