Robert Bratton likes his Hershey Whoppers and Reese’s Pieces.
So much so that the Columbia man bought roughly 600 boxes of them over the course of a decade.
But he has a gripe: the boxes are never full. In fact, according to a class-action lawsuit he brought against the Hershey Company, 41 percent of a 5-ounce box of Whoppers is empty. And 29 percent of a 4-ounce box of Reese’s Pieces is just air. The term for the empty space is “slack-fill.”
Bratton argued that the practice is misleading to consumers and violates the Missouri Merchandising Practices Act. He accused Hershey of “unjust enrichment.”
Bratton argued that air is justified for a bag of fragile potato chips but not for the coated peanut butter candy and the malted milk balls. And he noted that a box of Hershey’s Good & Plenty candy has substantially less slack-fill.
Bratton said he and other Whopper and Reese’s Pieces lovers “suffered an ascertainable loss as a result of Defendant’s unlawful conduct because the actual value of the Products as purchased was less than the value of the Products as represented.”
His lawsuit sought $5 million in damages.
A federal judge on Friday shot him down.
U.S. District Judge Nanette K. Laughrey said Bratton was not really harmed because he knew about the “slack-fill” and bought the candies anyway.
Bratton acknowledged he has been buying the candies about five times a month at least since 2006. He did not file his lawsuit until 2016.
“Mr. Bratton testified that he initially expected the boxes to be full but at some point...(he) realized that they’re not,” Laughrey’s ruling said. “Although Mr. Bratton claimed to have always clung to his hope that the boxes would be full, he acknowledged that he did not expect the box to be miraculously filled the next time he bought it.”