Missouri Man's Lawsuit Over Empty Space In Reese's Pieces Boxes Moves Forward

May 17, 2017

What would Elliot, dear friend of E.T. the Extra Terrestrial, say?

When Elliot scattered a trail of Reese’s Pieces for his alien friend in Stephen Spielberg’s classic movie, he probably wasn’t thinking about the candy’s packaging.

But Columbia, Missouri, resident Robert Bratton was.

Bratton bought several boxes of Reese’s Pieces and Whoppers malted milk balls at a Gerbes grocery story in Columbia for $1 apiece.

He says he was influenced by the size of the opaque boxes, which led him to believe he was buying more candy than he did. Turns out the boxes, as is commonplace in the industry, had a lot of “slack-filled” — or empty — space.

So Bratton did what any candy-loving American would do: He sued the maker of the candies, The Hershey Company. The class-action lawsuit, originally filed in state court last year, was moved by Hershey to federal court.

And in a setback for the company on Wednesday, the judge denied its motion to throw out the case. Although surviving a motion to dismiss is a fairly low bar – Bratton only had to allege facts stating a plausible claim for relief – it means that Bratton may yet get his day in court.

Bratton sued Hershey under the Missouri Merchandising Practices Act (MMPA), a 50-year-old law aimed at protecting consumers from unfair and deceptive business practices.

In her 22-page ruling, U.S. District Judge Nanette Laughrey found that Bratton had “plausibly alleged, at minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression, which is sufficient for purposes of alleging an unlawful practice under the MMPA.”

“The Court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading,” Laughrey wrote.

Laughrey made her finding even as she noted that the boxes specifically list their net weight, the number of pieces per serving (51 in Reese’s Pieces’ case, 18 in Whoppers’ case) and the number of servings per container (“about 3” in Reese’s Pieces’ case, “about 3.5” in Whoppers’ case).

But as Bratton complained, about 29 percent of the Reese’s Pieces boxes and about 41 percent of the Whoppers boxes consisted of “slack-filled,” or empty, space.

That, he said, led him to suffer “an ascertainable loss” because “the actual value of the Products as purchased was less than the value of the Products as represented.”

Hershey joins several other candy makers, including Nestle USA Inc. Mondelez International Inc., that have been sued recently for allegedly under-filling their candy boxes.

Hershey can take some consolation in Tuesday’s ruling. Laughrey deferred a decision on whether Bratton could pursue his claims for unjust enrichment on behalf of others. And unless Laughrey decides to certify the case as a class action, it’s unlikely Bratton will be able to pursue it as an individual case. That’s because his individual damages would likely be so miniscule as to make it economically unfeasible.

Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.