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A Whopper of a lawsuit: Hershey accused of under-filling boxes

A lawsuit alleging that Hershey is intentionally under-filling packages of Whoppers, Reese’s Pieces and other candy has gotten the green light to move forward.

Robert Bratton of Missouri claims that the $1 packages of chocolate he bought last fall were only partially full. The box of Whoppers, he argued in the lawsuit, was about 59 percent full, while the box of Reese Piece’s was 71 percent full. He says Hershey is short-changing customers by being “misleading, deceptive and unlawful,” and is asking the company to pay back at least $5 million to its customers.

“The big picture is pretty obvious,” said David L. Steelman, a lead attorney on the case, and managing partner at Steelman, Gaunt & Horsefield. “Not only are federal regulations not being followed, but anybody who walks through a grocery store can tell manufacturers are trying to sell products based upon promises that simply aren’t true.”

The Hershey Co. disputes the allegation that its packaging is deceptive and sought to have the lawsuit thrown out, but U.S. District Judge Nanette Laughrey last week ruled that the case could move forward because “the Court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading.”

The lawsuit is the latest in a string of similar cases to make their way into America’s courts. Recent filings allege that Wise Foods’ bags of chips contain 67 percent air, Barilla is underfilling boxes of pasta, and Starbucks is putting too much ice in its iced coffee. In February, a California woman sued the maker of Mike and Ike for similar reasons. (With the exception of the lawsuit against Starbucks, which was tossed out by a judge, the others are ongoing.)

Last year, Subway settled with customers who sued the company for selling foot-long subs that fell short of 12 inches. As part of the agreement, Subway said it would begin requiring employees to “use a tool for measuring bread” to ensure that its 6-inch and 12-inch sandwiches lived up to their promises. (“It was difficult to prove monetary damages, because everybody ate the evidence,” a lead attorney said at the time.)

Maria Glover, a law professor at Georgetown University, says the spate of copycat lawsuits is no accident.

“If the outcome is promising for one entity, it could be promising for another,” she said. “This is just the newest trend, although class-action suits against companies for seemingly small infractions are not a particularly new phenomenon.”

A spokeswoman for Hershey said the company does not comment on ongoing litigation. In its motion to dismiss, the Hershey, Pennsylvania-based candy maker said “a reasonable consumer, upon picking up the Reese’s Pieces or Whoppers container, would instantly realize that it is not filled to the brim.”

It added that “it 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.”

Bratton and his attorneys, meanwhile, argue that Hershey is violating a federal statute that prohibits “nonfunctional” empty space in packaged foods. Extra air in a bag of chips, for example, would be allowed because it helps prevent the chips from breaking. There are also exceptions for items that settle during shipping.

But Bratton and his attorneys argue he was misled to believe the packages he purchased would contain more candy than they did.

“Candy companies say ‘it’s only pennies,’ but this is absolutely a violation of a federal statute,” said Scott Kamber of Kamber Law, another lead attorney on the case. “Twenty percent of a box – that’s an extra 20 cents for the company every time someone buys a $1 box of candy.”

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