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.

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