NEW YORK (Legal Newsline) – Hershey's plans to seek dismissal of a class action lawsuit filed against it complaining about the number of Kisses in its packaging.

The lawsuit was filed in New York federal court on Sept. 20. Plaintiff Christopher Huppert claims Hershey's falsely advertises the amount of certain flavors of Hershey Kisses contained in allegedly 12-ounce bags. His argument is that some bags — particularly the almond-filled Kisses — contain less than 12 ounces, even though they are sold at the same price.

He alleges that this is in violation of New York’s Consumer Protection Act and that the company has reduced the number of Kisses in their “Classic Bags" 

Hershey's is claiming there is no merit to Huppert’s claims and that it is in full compliance with all state and federal laws.

Presiding Judge Cathy Seibel granted Hershey's an extension to respond to the lawsuit, which it did on Nov. 22 in a letter in anticipation of a pre-motion conference that has been postponed to Jan. 11.

According to the letter Hershey filed with the court, it will seek dismissal of the complaint on three principal grounds.

First, the claims are allegedly preempted by the federal Food, Drug and Cosmetic Act.

The complaint does not, and cannot, allege that Hershey has not complied with the federal Food and Drug Administration's net-weight requirement, the company says. Huppert wants to impose an additional requirement — that similarly sized bags must always contain the same weight - but currently, there is no existing requirement under the Food, Drug and Cosmetic Act, the company says.

Second, the claims are barred by New York's General Business Law, which provide a safe harbor in situations in which the alleged behavior complies with federal law, the company says.

Third, Hershey's claims the plaintiff’s claims are null and void because the complaint does not allege a materially misleading practice, as is required to state a claim. To qualify, an act or advertisement must be likely to mislead a reasonable consumer acting reasonably under the circumstance, the company says. 

"In any event, no reasonable consumer would be misled to think that the three' Classic Bags" - each of which bears its own color scheme and style of candy wrappers, and each of which includes a conspicuous statement of the package's net weight - contain the exact same amount of chocolate," wrote Steven Zalesin, of Patterson Belknap Webb & Tyler.

"No reasonable consumer would draw a conclusion about the packages' net weight based solely on the 'Classic Bag' insignia without looking at other elements, including the prominent net-weight disclosures."

The complaint alleged the company engaged in a deceptive business practice that has the "capacity, tendency and effect" of deceiving reasonable consumers.

“Defendant has engaged in a systematic course of misrepresenting the products to consumers.”  

The plaintiff claims the packaging violates section 349 of the New York General Business Law.

Huppert also claims that Hershey’s violates New York’s section 350 of General Business Law, which defines false advertising as “advertising, including labeling, of a commodity, or of the kind, character, terms or conditions of any employment opportunity if such advertising is misleading in a material respect.”

Huppert's lawsuit includes prospective class members who are seeking to recover their actual damages, or $50 for each alleged violation. Huppert is also seeking triple damages and attorneys fees.

Huppert is represented by Jeffery I. Carton and Robert J. Berg of Denlea & Carton LLP in New York.

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