A lack of candy is always disappointing, but can it lead to corporate liability? A suit against The Hershey Company (Hershey’s) alleges that it can, and a district court’s recent denial of Hershey’s motion to dismiss means that the claim can proceed to trial.
Missouri resident Robert Bratton filed a putative class-action suit against Hershey’s alleging that the company’s under-filled candy boxes violate the Missouri Merchandising Practices Act (MMPA) and result in unjust enrichment. The two candies involved in the suit are Reese’s Pieces and Whoppers. A four-ounce box of Reese’s Pieces contains approximately 29% slack-fill, or empty space, and a five-ounce box of Whoppers contains approximately 41% slack-fill. According to Bratton, the slack-fill serves no purpose and causes the packaging to mislead consumers. After removing the case to federal court, Hershey’s filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.”
Pleading Standards & Elements
Under federal pleading standards, Bratton’s complaint can survive the motion to dismiss if it contains sufficient facts to support “a claim to relief that is plausible on its face.” A successful claim under the MMPA requires (1) a 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 conduct declared unlawful under the MMPA. The scope of unlawful conduct under the MMPA is broad and essentially includes any unfair practice in connection with the sale or advertisement of merchandise. According to Hershey’s motion to dismiss, one of the flaws in Bratton’s complaint is that it fails to plausibly allege unlawful conduct under the MMPA.
Plausibility of Allegation
Bratton’s argument is that Hershey’s packaging misleads consumers and that this constitutes an unfair practice in connection with the sale of its products. On average, consumers make in-store purchasing decisions in approximately 13 seconds, often based on product packaging. The district-court judge found that the complaint “plausibly alleged, at a minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to [have] the capacity to mislead consumers or create a false impression, which is sufficient [to allege] an unlawful practice under the MMPA.” The plausibility of the allegation is also supported by a federal regulation that generally prohibits non-functional slack-fill in packaging. Hershey’s argues that consumers are generally aware that commercial packaging contains slack-fill and that a consumer has actual knowledge of the slack-fill upon hearing the rattle in the container when picking it up from the shelf. The judge noted, however, that these facts were not included in Bratton’s complaint and are not subject to judicial notice. Any dispute about facts like these may not be addressed on a motion to dismiss.
Bratton’s suit is one of several in U.S. courts claiming that companies are using misleading packaging to deceive consumers. Companies facing similar suits include Wise Foods, Barilla, and the maker of Mike and Ike. It is unclear whether such claims are likely to succeed on the merits, but proceeding to trial may be costly. In contrast, Starbucks faced a similar suit that was dismissed in 2016. The suit alleged that the company misrepresented the size of iced beverages because the volume measurement consisted partially of ice rather than coffee. The judge noted that reasonable consumers are aware that the stated volume of an iced drink will include ice and therefore dismissal was appropriate. This is particularly true because Starbucks cups for iced drinks are clear and allow consumers to see the contents of the beverage.
For more information on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see O’Connor’s Federal Rules * Civil Trials.
 See Bratton v. Hershey Co., No. 2:16-cv-4322-C-NKL (W.D.Mo.2017) (order; 5-16-17); Debra Cassens Weiss, Judge Allows Suit Over Underfilled Candy Boxes; Hershey’s Says Consumers Alerted by ‘Audible Rattle’, ABA Journal, May 30, 2017.
 See Fed. R. Civ. P. 12(b)(6); Bratton, No. 2:16-cv-4322-C-NKL (order).
 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
 See Mo. Rev. Stat. §407.025.1; Bratton, No. 2:16-cv-4322-C-NKL (order).
 See Mo. Rev. Stat. §407.020.1; Bratton, No. 2:16-cv-4322-C-NKL (order).
 See Bratton, No. 2:16-cv-4322-C-NKL (order).
 See 21 C.F.R. §100.100; Bratton, No. 2:16-cv-4322-C-NKL (order).
 See Bratton, No. 2:16-cv-4322-C-NKL (order).
 See Abha Bhattarai, A Man Is Suing Hershey for ‘Under-Filling’ His Box of Whoppers, Washington Post, May 25, 2017.
 See O’Connor’s, In Dismissing Case Against Starbucks, Judge Decides Iced Coffee Contains Ice, Oct. 3, 2016.