Did Hershey Just Make a Legal Whopper? Company Defends Underfilled Box With “Audible Rattle Defense”

Whoppers_boxHershey company just made a novel, if unsuccessful, defense against a lawsuit claiming that it routinely underfilled boxes of Reese’s Pieces and Whoppers. We have all experienced that moment of irritation when we opened a box of candy to find it half full.  After Robert Bratton sued, the company argued that the “audible rattle” was sufficient warning for consumers.  That did not prove enough for U.S. District Judge Nanette Laughrey of the Western District of Missouri, at least for the purposes of pre-trial dismissal.  Laughrey has green lighted the case for a full trial.

 

These lawsuits play an important consumer function in forcing companies to account for misleading advertising and packaging.  Bratton alleges that 29 percent of the Reese’s Pieces Box and 41 percent of a Whoppers box are empty.  The decision to use a larger box is an obvious effort to mislead consumers about how much candy they are actually buying.

There is a wonderfully Orwellian term for this practice called “slack-fill” or “the difference between the actual capacity of a container and the volume of product actually contained therein.”  That is, the box is not empty but filled to the top with slack.  The question under the FDA regulation is whether the “slack fill” is “non-functional slack fill”:

 

Sec. 100.100 Misleading containers.

In accordance with section 403(d) of the act, a food shall be deemed to be misbranded if its container is so made, formed, or filled as to be misleading.

(a) A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill. Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein. Nonfunctional slack-fill is the empty space in a package that is filled to less than its capacity for reasons other than:

(1) Protection of the contents of the package;

(2) The requirements of the machines used for enclosing the contents in such package;

(3) Unavoidable product settling during shipping and handling;

(4) The need for the package to perform a specific function (e.g., where packaging plays a role in the preparation or consumption of a food), where such function is inherent to the nature of the food and is clearly communicated to consumers;

(5) The fact that the product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has value which is both significant in proportion to the value of the product and independent of its function to hold the food, e.g., a gift product consisting of a food or foods combined with a container that is intended for further use after the food is consumed; or durable commemorative or promotional packages; or

(6) Inability to increase level of fill or to further reduce the size of the package (e.g., where some minimum package size is necessary to accommodate required food labeling (excluding any vignettes or other nonmandatory designs or label information), discourage pilfering, facilitate handling, or accommodate tamper-resistant devices).

There is notably no reference to the rattle test.  You can have slack fill but not “non-functional slack fill.”  That is not saying “nonfunctional empty fill” but it makes sense to bureaucrats.

While the boxes do state the ounces, it is hard for most people to associate ounces with the amount of actual candy, particularly when the box leaves a misleading impression as to the contents.  Notably, Germany and European countries impose taxes on packaging to force the internalization of disposal costs to society. The result is that European packaging tends to be less wasteful and also less misleading.

Bratton filed claims under the Missouri Merchandising Practices Act.  The Act states:

407.020. 1. The act, use or employment by any person of 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 or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. The use by any person, in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general has approved any filing required by this chapter as the approval, sanction or endorsement of any activity, project or action of such person, is declared to be an unlawful practice. Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation.

I am not sure how many consumers would be thrilled by Hershey’s claim that they should know better from the “audible rattle.”  Moreover, the company basically argues that everyone does it and that the empty space is “necessary for efficient manufacturing and distribution.”  It seems more likely that the considerable empty space is meant to mislead consumers on the real value of their purchase.

What do you think?

 

Here is the complaint: Hershey complaint

 

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