KANSAS CITY, Mo. (Legal Newsline) – The Hershey Co. recently filed a motion to dismiss a class action lawsuit that was brought against the chocolate manufacturer and distributor over alleged false advertisement and violation of the Missouri’s Merchandising Practices Act (MMPA).
The lawsuit, filed earlier this year by Robert Bratton of Missouri, accuses Hershey of “deceptive and unlawful conduct” in its packaging of Reese’s Pieces and Whoppers candy. According to Bratton’s complaint, the candy packaged in cardboard boxes is “under-filled” or “slack-filled” for non-descriptive and functional reasons.
Slack filling is a common practice among food distributors. The Food and Drug Administration (FDA) allows containers and packages to have empty space under Section 403(d) of the Federal Food, Drug and Cosmetic Act so long as there are specific lawful purposes such as protection against shipping and handling.
The MMPA incorporates the same federal guidelines.
The origin of the suit began when Bratton allegedly purchased a four-ounce box of Reese’s Pieces and a five-ounce box of Whoppers in Columbia, Mo., sometime around Sept. 22, 2016. He claimed the sizes of the boxes were misleading were “substantially slack-filled.”
By his calculations, the Whoppers box was 41 percent empty and the Reese’s box was 29 percent empty. Bratton argued no one would purchase the candy if they knew how empty the boxes were.
Bratton plans to represent both the citizens of Missouri and consumers nationwide who bought any of the products in question within the last five years of the suit.
In March, Hershey's filed a motion to dismiss in response to Bratton’s claims, essentially labeling them baseless. The company states full disclosure of the contents is listed on the packages.
It further argued consumers know what to expect from the contents through prior experience with other commercial products and that picking up a box should inform them the packages are “not filled to the brim.”
A hearing for the motion was granted and held on May 9 before U.S. District Court for the Western District of Missouri with U.S. District Judge Nanette K. Laughrey presiding.