A judge in Kansas City has ruled that a Missouri man can proceed with his class-action lawsuit against The Hershey Co. over how it fills boxes of Whoppers and Reese’s Pieces.
Robert Bratton of Columbia accuses Hershey of underfilling cardboard boxes of the two candies.
In other words: Too much air, not enough candy.
Bratton filed his lawsuit last year after he bought boxes of Reese’s Pieces and Whoppers at a Gerbes grocery store in Columbia, for $1 each, around Sept. 22, 2016, according to the lawsuit.
He claims the boxes were under-filled and had too much “slack-fill.”
Slack-fill is “the difference between the actual capacity of a container and the volume of product actually contained therein,” according to the Food and Drug Administration.
Leaving empty space in containers and packages is common practice among food distributors. They can legally use it for specific reasons, such as protecting contents during shipping and handling.
Sometimes, slack-fill happens naturally when contents settle during shipping.
But it runs afoul of FDA rules and is considered unlawful, “nonfunctional slack-fill” if, for instance, manufacturers use it to mislead consumers about what’s inside a container that’s not filled to capacity.
So is Hershey slacking off?
Bratton’s lawsuit alleges that 59 percent of the Whoppers container was filled with candy and 41 percent of the box was empty, and 71 percent of the Reese’s Pieces box was filled with candy, leaving 29 percent of the box empty.
He included photos of the candy boxes with his lawsuit.
“The extra space isn’t necessary to protect the candy, since both products are also sold in flimsy plastic bags,” argues Consumerist, which is following the case. “Why are the boxes so under-filled?”
The lawsuit says Bratton “would not have purchased the products had they known that the containers were substantially empty, or would have purchased them on different terms.”
He sued Hershey under the Missouri Merchandising Practices Act (MMPA), created to protect consumers against unfair and deceptive business practices, according to Legal Newsline.
Hershey filed a motion in March to dismiss the lawsuit. It argued that it states the contents right on its packaging. The candy maker also argued that people are savvy enough to know what they’re getting, saying “consumers are well aware of the fact that substantially all commercial packaging contains some empty space.”
Any consumer, Hershey argued, “would recognize immediately upon picking up a box of Reese’s Pieces or Whoppers that its contents rattle noticeably and audibly with every movement.”
Last week, U.S. District Judge Nanette Laughrey denied Hershey’s motion to throw out the case, KCUR reports.
So this Whopper of a case continues on, with many in the food industry watching.
“Hershey is just the latest company to become embroiled in a slack-fill lawsuit: Back in April, two people sued Wise potato chips, claiming that their chips bags were 75% empty,” notes Food & Wine.
Bratton’s case, it says, “could set a precedent forcing companies to cut back on unnecessary slack fill practices — but the battle against corporations is not an easy one to win, so don’t expect to see boxes filled all the way to the top with your favorite candy anytime soon.”