Legal Newsline

Tuesday, August 20, 2019

Judge tosses ‘Whopper’ of a lawsuit against Hershey over slack fill

By Amanda Thomas | May 9, 2018

JEFFERSON CITY, Mo. (Legal Newsline) – A Missouri man who claims he has purchased about 600 boxes of Reese’s Pieces and Whoppers over a period of several years has lost his class action lawsuit against the Hershey Co. over the alleged amount of empty space in its packaging.

In a Feb. 16 ruling, U.S. District Judge Nanette K. Laughrey of the District Court for the Western District of Missouri granted Hershey’s motion for summary judgment and dismissed Robert Bratton’s Missouri Merchandising Practices Act and unjust enrichment claims with prejudice. 

Laughrey said Bratton wasn’t really harmed because he knew the boxes were under-filled, or “slack-filled,” and bought the candies anyway. 

“Mr. Bratton has admitted that, since well before the class period, he has been aware of approximately how much candy and how much empty space was in each box of Whoppers and Reese’s Pieces, and that he nonetheless continued to purchase the boxes,” she said in her decision. 

She cited Bratton’s testimony that he initially expected the boxes to be full, but realized they were not. 

“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’,” Laughrey said in her ruling. 

According to the lawsuit, between 30 and 40 percent of a 5-ounce box of Whoppers and a 4-ounce box of Reese's Pieces is empty space or “slack fill.” Braxton argued that the practice is misleading to consumers and violates the MMPA. He also argued that Hershey’s consistently slack-filled its candy packages without any reason, such as to protect a product or leave room on the package for nutrition information. 

Bratton was seeking $5 million in damages. He acknowledged he has been buying the candies at least about five times a month since 2006. A similar case he filed against Tootsie Roll Industries over the number of Junior Mints in a box remains pending.

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Organizations in this Story

The Hershey Company U.S. District Court of the Western District of Missouri Jefferson City Division