A box size whopper? Slack fill claims for candy continue

Bratton v. Hershey Co., 2017 WL 2126864, No. 16–cv–4322 (W.D. Mo. May 16, 2017)

Bratton sued over alleged slack fill in Reese’s Pieces and Whoppers candy boxes.  He alleged that:

Consumers spend an average of 13 seconds making an in-store purchasing decision. The decision is heavily dependent on a product’s packaging, in particular, the package dimensions. When faced with a large box and a smaller box, both containing the same amount of product, a consumer is more likely to choose the larger one, thinking it is a better value.

About 29% of each Reese’s Pieces box was allegedly slack filled, and about 41% of each Whoppers box. 

Bratton sued under the Missouri Merchandising Practices Act (MMPA) for a Missouri consumer subclass, which requires (1) the purchase of goods or services, (2) primarily for personal or household purposes; and (3) an ascertainable loss of money or property, (4) as a result of, or caused by, the use or employment by another person of a method, act, or practice declared unlawful under the MMPA. The MMPA is “ ‘paternalistic legislation designed to protect those that could not otherwise protect themselves,’ ” High Life Sales Co. v. Brown–Forman, Corp., 823 S.W.2d 493, 498 (Mo. 1992), and is thus very broadly written.  Unlawful practices include “any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.”  Reliance is not required. “[I]n order to prevent evasion by overly meticulous definitions,” the statutory scheme does not provide definitions of any particular unlawful practices. Thus, “[f]or better or worse, the literal words cover every practice imaginable and every unfairness to whatever degree.”

The Missouri Attorney General has authority to promulgate rules under the MMPA. Under those rules,  “deception” is defined as “any method, act, use, practice, advertisement or solicitation that has the tendency or capacity to mislead, deceive or cheat, or that tends to create a false impression,” and “[i]t is deception for any person in an advertisement or sales presentation to use any format which because of its overall appearance has the tendency or capacity to mislead consumers.” The rules further provide that reliance and intent are not elements that must be proven to establish deception or misrepresentation, nor is proof of deception, fraud, or misrepresentation required.

Given this breadth, the allegations of the complaint that the packaging misled Bratton to believe that the boxes contained more candy than they actually did, and that the actual value of the product was less than the value as represented by the packaging, were sufficient. “Hershey’s candy boxes are opaque and non-pliable, and a reasonable consumer could conclude that the size of a box suggests the amount of candy in it.”  The court’s conclusion was reinforced by Bratton’s allegations about federal regulations barring slack fill, subject to exceptions that Bratton alleged didn’t apply. Regardless of whether he could prove his MMPA claim by pointing to such violation, the existence of the federal prohibition “supports the reasonableness of a consumer’s belief that the package of candy he purchases will not have 29% or 41% non-functional slack-fill.”

Hershey argued that “[c]onsumers are well aware of the fact that substantially all commercial packaging contains some empty space”; that “[i]t is common knowledge in ‘our industrial civilization’ that substantially all packaged goods include some amount of empty or ‘head’ space, which is necessary for efficient manufacturing and distribution”; and that “a reasonable consumer, upon picking up the Reese’s Pieces or Whoppers container, would instantly realize that it is not filled to the brim: with each movement of the package, its contents noticeably and audibly rattle.” But the allegations of the complaint controlled, and Hershey’s statements were not facts of which the court could take judicial notice.  Anyway, realizing that the package wasn’t filled to the brim didn’t contradict Bratton’s allegations that the boxes were substantially empty and that they could easily be more full.  Deliciously, Hershey deposited sample boxes with the court, but the court declined to make findings of fact “about what conclusions a reasonable consumer would draw about the amount of product in the course of deciding to purchase the boxes.”

Hershey also argued that the clear and accurate labeling on the packages—net weight, number of pieces of candy per serving, and number of servings per box—was fatal to Bratton’s claim because it tells a consumer how much candy is in the box. An ingredient list is not required on packaging “so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misrepresentations and provide a shield from liability for that deception.” A reasonable consumer “would expect that the ingredient list comported with the representations on the packaging, and … in any event, the manufacturer was in the superior position to know and understand the ingredients in the product, and whether they comported with the packaging.” The same is true for the dimensions of the boxes as for the ingredients.

Hershey then argued that Bratton failed to allege ascertainable loss under the MMPA. Ascertainable loss involves “the benefit-of-the-bargain rule, which compares the actual value of the item to the value of the item if it had been as represented at the time of the transaction.” The allegations here were sufficient:

Bratton alleged that the value of the products he purchased was less than the value of the products as represented by size of the boxes.

Standing to pursue injunctive relief: Hershey argued that, now that Bratton knows about the slack fill, he can’t plausibly claim that he’s subject to further harm.  However, the court found that Bratton adequately pled a threat of ongoing or future harm, which is fairly traceable to Hershey’s conduct: Hershey continues to sell slack-filled candy boxes.  If Hershey changes its practices, Bratton alleged, he’s likely to buy the products in the future.  The fact of Bratton’s discovery of the truth doesn’t make the packaging less misleading.

Likewise, Bratton sufficiently pled unjust enrichment.  The question of whether he could represent a Missouri or nationwide class was not appropriate for resolution at this stage.