It’s a standard practice in the confectionary industry: under-filling, or leaving empty space in, candy boxes.
And now a judge has ruled that a Columbia, Missouri, man’s claim that he was defrauded by the practice is just as empty.
On Friday, U.S. District Judge Nanette Laughrey tossed Robert Bratton’s class-action lawsuit, saying Bratton knew the boxes of Reese’s Pieces and Whoppers he purchased had a lot of "slack-filled" space.
“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,” Laughrey wrote. “Therefore, he cannot demonstrate that he was injured by any purportedly deceptive practice by Hershey.”
Bratton had sued Hershey in 2016 under the Missouri Merchandising Practices Act (MMPA), a 50-year-old law aimed at protecting consumers from unfair and deceptive business practices.
Bratton was a prolific consumer of the candies. He’d been buying them since at least 2006 and guessed that he purchased each of them at least five times a month, or about 600 boxes per candy in total.
He testified that while he expected the boxes to be full, at some point he realized they weren’t. Despite that, Laughrey pointed out, he continued buying an average of five boxes a month.
Citing another case, Laughrey found that a plaintiff who doesn’t care about an allegedly misleading marketing practice, or who knew about it but purchased the products anyway, was not injured by the practice.
Confectioners commonly leave empty space in their packages. They say there are functional reasons for doing so, including “protection of the contents” and “unavoidable product settling.”
The U.S. Food and Drug Administration allows slack-fill, but prohibits companies from "misleading" packaging where the packages are opaque and its contents can’t be seen.
Hershey argued that consumers “would recognize immediately upon picking up a box of Reese’s Pieces or Whoppers that its contents rattle noticeably and audibly with every movement.”
As unlikely as his claim was, Bratton’s lawsuit was among several “slack-fill” suits that have been filed in recent years. At least so far, none appear to have resulted in a judgment for the plaintiffs.
Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.