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

Hershey 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


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

  1. My wife is particularly annoyed that when she buys certain OTC medicines, a small plastic bottle will be wedged into the corner inside a much larger cardboard box, with many times the volume represented by the bottle.

  2. Judge Laughery is one of the best federal district court judges that exists.

  3. Seems easy to me, says 5 ounces on the package so it should have 5 ounces within the tolerances allowed by law. Whether it rattles or not is not a quantitative test discrete enough to confirm it contains 5 ounces.

  4. I am all for the Plaintiff in this one. American consumers are already being screwed in sooo many ways that it isn’t funny, and one thing governments have ALWAYS done is try to protect the consumers from crooked businessmen and businesswomen. From the Code of Hammurabi:

    108. If a tavern-keeper (feminine) does not accept corn according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the corn, she shall be convicted and thrown into the water.


    (Law 108 had to do with those tavern keepers who poured `short measures’ of beer in return for cash instead of corn (which could be weighed and held to a measure) to cheat their customers; they would be drowned if caught doing so. )

    Squeeky Fromm
    Girl Reporter

    1. ” … cheat their customers … they would be drowned if caught doing so. ”

      Ummm … so tell me again what were you saying about applying this to Wall Street and financial advisors?

  5. “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.”

    But but but ….. that would be SOCIALISM !

  6. I agree with Judge Laughrey in that this case should proceed to trial.

    I suspect the intent of the law with regard to the slack-fill is that a consumer can be deceived by an over-volume. Some have argued that if the weight of the product is mentioned, the manufacturer gave ample notice as to the contents. I disagree.

    Most consumers are not libraries of specific weight/volume metrics for each food product in circulation but can easily determine quality visually in terms of size. The voids in the product packaging are clearly intended to deceive on the visual cues as to how much product the consumer can then measure against the price offered and the quantity desired. Having opaque packaging prevents such visual measurements.

    The rattling defense is both laughable and ridiculous, especially in light of the fact that much regulation and standardization is enacted to enforce accurate portrayals of size, weight, and volume. The defendant is essentially equating shaking a candy box as being of such accuracy. Perhaps they should have remembered from childhood that shaking a Christmas present is not an accurate determiner of what is inside.

    I suspect that in the end the case will not be won by the defendant.

  7. Like most, I find certain practices more duplicitous than others in the food industry. Reducing the size of candy bars and then calling it, “fun size”, or coffee cans, or whatever, while actually increasing the cost per oz., seems the epitome of a system where the model is the religion is increasing profit on the one hand while decreasing quality (sometimes expressed as quantity) on the other.

    For critical food stuffs, and people on the financial edge, this is just plain nasty.

  8. If the slack space were really necessary, why would the Reece’s box have only 29% but the Whoppers would have 41%? Although I do think by now people would know to read labels.

  9. Shake Rattle And Roll

    Hey, it’s like the doughnut. The most expensive part is the hole.

  10. It’s easy to come up with a comment that makes Trump relevant to the topic of marketing and shopping. Why did Melania decide to marry Trump? She is a true “shopper” and couldn’t resist anything that is 80% off.

  11. The box was clearly marked 5 oz. What was the weight? Did anyone including the Judge ask that rather obvious question? Reasonable and prudent people who pick up a box expecting 10 oz would have had it weighed at the register.

    1. Exactly. Unit price / weight is all you need (or price per pound) and a little practice with different food types. One can still get “taken” in a moment of carelessness or distraction, but rarely twice for the same thing.

  12. I thought they were sold by weight, not volume. Like cereal.

  13. Considering what we have learned about the health effects of sugar in recent years, we would all probably be better off if they just left the box empty.

    1. There has to be some “good” sugar. In something…somewhere. We humans live for the stuff!

      1. “There has to be some “good” sugar. In something…somewhere. We humans live for the stuff!”

        Like many things in life, it just depends on your circumstances.

        If you are a hunter gatherer, basically on a starvation diet, till you kill your next mastodon, then sugar is a life saving nutrient that provides energy and builds fat reserves.

        On the other hand, if you are a denizen of the couch in post industrial American, then sugar does little more than inflame arteries creating places ripe for the build up of plaque.

        Bon appetit.

      1. Right-on, Nick! We learned that a long time ago, didn’t we? Though, sometimes it is hard to remember.

  14. Kind of brings to mind another product that has been branded and touted to be something it simply isn’t. Trump, the healthiest President ever-by his advertising, can’t keep up with the other G-7 leaders on a short walk in Sicily, and follows in a golf cart. Trump, the self made man who has been there and done everything and alone can solve America’s problems, up at night tweeting his defenses to who ever will listen, fewer and fewer. Trump, the megalomaniac hollow man, box not even close to being half full.

    1. NOTE: May be a duplicate as my original is being reviewed by the blog Gestapo as it states….
      “Your comment is awaiting moderation.”

      So I cleaned it up and tried this.

      You are so lucky. Lucky that in here I reframe from using the words the best describe your blatant stupidity. Although you may just be worth getting banned over. Keep pushing my buttons you blue state liberal troll loser.

      Try staying on message.
      🍬 CANDY.

      How someone enters a blog and appears in a thread about candy size and reverts to rant about
      The President of the United States of America is beyond me.

      After all. To look at you one would think your head is a normal size. How are we to know that you have a brain the size of a pea. Should we shake you?
      Oh, I see. You were trying to be cute. Sick… get some help. News flash….you lost.

      You know, when Senator Obama first won (who was not my choice) he became my President. I had one hope and desire and that was that he’d be hugely successful. Being the first Black President he had an opportunity to do so much good yet he squandered it all.

      So, lets get back to the issue at hand….candy. Not to sugar coat it but here is what you face so suck on this…
      Trump 2020
      Pence 2024
      Pence 2028

      1. Your remarks about Obama reveal your hypocrisy. Obama was lambasted on this blog for years and years, regardless of the ‘sacred’ position he held. The Presidency is only as good as the person in the chair. Obama did a more than adequate job of cleaning up after eight years of incompetence but failed in many other things. That is the fact of the matter of a job like this, especially when confronted with a two party/choice system where the opposition in traitorously choosing power before the best interests of the country. Read the papers. I wish the best for the US which equates to Trump making as few mistakes as possible. So far, he is little different than a Yuge box of garbage that is under filled, over priced, and not good for ya. If ever there was a parallel it is between Trump and candy, something we would all be better off without. Pay attention; this is less than a half year in and he is shaming America at every turn. His only supporters are those that are obligated to tout his fantasies because they were duped by them.

      2. You have a little money you want laundered by Trump Kushner Inc? Hope your homophobe boy is out of the loop.

    2. Our Canadian Rain Man. This post is about CANDY! Time for Wapner?

    3. Isaac is just using tactics designed and perfected by Adolf Hitler himself, in Mein Kampf, to wit, keeping up the drumbeat of negative messaging about Trump at every opportunity. Here is a blurb from Wiki, on Propaganda:

      Mein Kampf contains the blueprint of later Nazi propaganda efforts. Assessing his audience, Hitler writes in chapter VI:

      “Propaganda must always address itself to the broad masses of the people. (…) All propaganda must be presented in a popular form and must fix its intellectual level so as not to be above the heads of the least intellectual of those to whom it is directed. (…) The art of propaganda consists precisely in being able to awaken the imagination of the public through an appeal to their feelings, in finding the appropriate psychological form that will arrest the attention and appeal to the hearts of the national masses. The broad masses of the people are not made up of diplomats or professors of public jurisprudence nor simply of persons who are able to form reasoned judgment in given cases, but a vacillating crowd of human children who are constantly wavering between one idea and another. (…) The great majority of a nation is so feminine in its character and outlook that its thought and conduct are ruled by sentiment rather than by sober reasoning. This sentiment, however, is not complex, but simple and consistent. It is not highly differentiated, but has only the negative and positive notions of love and hatred, right and wrong, truth and falsehood.”[5]

      As to the methods to be employed, he explains:

      “Propaganda must not investigate the truth objectively and, in so far as it is favourable to the other side, present it according to the theoretical rules of justice; yet it must present only that aspect of the truth which is favourable to its own side. (…) The receptive powers of the masses are very restricted, and their understanding is feeble. On the other hand, they quickly forget. Such being the case, all effective propaganda must be confined to a few bare essentials and those must be expressed as far as possible in stereotyped formulas. These slogans should be persistently repeated until the very last individual has come to grasp the idea that has been put forward. (…) Every change that is made in the subject of a propagandist message must always emphasize the same conclusion. The leading slogan must of course be illustrated in many ways and from several angles, but in the end one must always return to the assertion of the same formula.”


      Ironic, isn’t it.

      Squeeky Fromm
      Girl Reporter

      1. Great comments about Rain Man’s propaganda from CV Brown and Squeek.

        1. Thanks NickS!!!

          I love it when Isaac(and other idiots and shills here) blather out the “Trump is childish!” meme. Hmmm. Let’s see, I am not aware of any major nation that doesn’t have immigration laws. Yet, the Dems run around with their hands in the air claiming “there are no illegal people!” Like a little 5 year old girl who just got a puppy from the pound, and is crying because she wants to bring all the little orphan animals home. Sooo, her daddy explains that the family just can’t afford all the 70 dogs, and the 62 cats at the pound.

          Trump is the “daddy” and the Democrats are the “little 5 year old girl”, and guess who Rocket Scientist Isaac (and the others) call childish and immature? They are just repeating the meme they hear from the NYT and Washington Pest, like Hitler said, repeating the same charge over and over and over.

          Squeeky Fromm
          Girl Reporter

        2. Was that a real compliment for me? Never sure as so much of this is so way over my head.

          Funny about some as I’ve only been on here a couple of months.

          1. CV Brown, It was a real compliment. We need to work on your self esteem.

  15. Oh my gosh. I never ever would have guessed. Guessed that we have teams of folks at our Federal level crafting and writing all these laws. Not to mention it being duplicated by 50 states.

    We have, it appears, no chance in draining the swamp.

    I mean all this, at what cost because someone thinks his Goobers were shorted?

    If my 2.5 ounce of KY is put in something as big as my grande cup I really don’t not should I care if I receive 2.5 ounces which is what I wanted and paid for.

    Personally I think we should cut them some “slack”.

    Thanks a lot JT. If my wife reads your post I could be in serious serious trouble.
    I can hear her now. “Honey, you remember when you gave me my ring and asked me to marry you?” ….replying “yes dear”
    “Do you remember the box” …..huh? “You know that huge, huge box about the size of my refrigerator with that little bitty ring in it?

  16. When I was growing up in the 1950s, the size of a Hershey’s bar was an indicator of the strength of the economy. The price never changed from 5 cents, but the size of the bar would shrink and grow. Hershey has a long history of manipulating their packaging.

    1. Yep, them was the good ole days. Yes sir…..thinking back to my Soc 101 when we discussed homosexuals. They were considered deviants and labeled as a deviant sub culture.

      Yes sir. They were the good ole days. Boy oh boy.

      1. Not long ago. Nearly all ice cream was sold in half gallons. Fools started accepting smaller containers (25% less / 3 pints) at same price), so other manufacturers didn’t want to lose out on profit so they downsized.
        Its a race to the bottom. Any smart person could see it coming.

      2. CV Brown – thank the gods we had the APA protect us. 🙂

  17. Packaging is the biggest scam going. It has reached ludicrous proportions…as it were.

    1. Smile, chuckle……..very good! Darren Smith-approved, me thinks.

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