- A federal judge ruled last week that a lawsuit against Hershey could go forward, according to an article in The Washington Post. The case was filed by a consumer who claims Hershey is short-changing customers by being "misleading, deceptive and unlawful" by selling packages of candy that are only partially full
- The lawsuit accuses Hershey of only filling a $1-sized box of Whoppers about 59% full. A $1-sized box of Reese's Pieces was only about 71% full. Hershey argued in its response that reasonable consumers would immediately know the boxes are not completely full. The candy maker added it's common knowledge that all CPGs "include some amount of empty or ‘head’ space, which is necessary for efficient manufacturing and distribution."
- According to the lawsuit and attorneys who spoke to The Washington Post, Hershey is violating a federal statute that prohibits "nonfunctional" space in packaged foods. The lawsuit asks for the company to pay damages to consumers that could top $5 million.
Hershey is the latest company to face a lawsuit over "slack-fill" packaging. Similar lawsuits are currently pending against Barilla — accused of underfilling boxes of dried pasta— and McCormick, which reduced the amount of pepper contained in a package without changing its size.
As litigation against food companies proliferates, the number of slack-fill cases — where consumers claim packaging tricks them into thinking there is more product inside — also has exploded. According to an analysis on Law360, the number of these cases has increased more than sixfold since 2013.
This kind of lawsuit is not a sure-fire success for either party. Judgments on slack-fill cases — which have also been filed against pharmaceutical and personal care manufacturers and coffee chains — have resulted in big wins and big losses for the manufacturers.
In these cases, companies tend to make arguments similar to those from Hershey. They say there is a product weight, volume or piece count printed on the outside of the container so the consumer knows what he or she is getting. They also argue the empty space in the container is permitted by law because it serves a functional purpose, happened through settling, or is part of the manufacturing process.
In December, a New York judge dismissed a slack-fill lawsuit against CytoSport, the manufacturer of Muscle Milk now owned by Hormel Foods, partially because the defendant could not prove that the 30% empty space in the container did not serve a protective function. Last October, a slack-fill lawsuit against Mondelez was thrown out by a judge in California. The plaintiff argued that Go-Paks of popular snacks were deceptively underfilled, which was summarily dismissed by the court. "No reasonable consumer expects the overall size of the packaging to reflect precisely the quantity of product contained therein," the opinion reads.
Given the nature of slack-fill cases and rulings — and the long legal battle that manufacturers face to fight the lawsuits — attorneys recommend that companies protect themselves from legal battles. Ways to stop court challenges before they happen could include using transparent packaging and designing more conspicuous product volume or weight labels.