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Hershey's is the latest company to be sued over slack-fill. 

Elisabeth Sherman
May 22, 2017

A Missouri man has taken a common gripe with snack food companies to court: The boxes of Reese’s Pieces and Whoppers he bought appeared to only be half full, and now he's filed a class action lawsuit against Hershey’s over this instance of slack fill – empty space in a package.

Robert Bratton bought the boxes of candy at a grocery store, the cardboard boxes supposedly making him think he would be getting more candy that is actually contained inside the box. When he opened the boxes, he was apparently shocked to find so much empty space – despite the fact that the outer packaging is clearly marked with the weight of number of candies per serving.

Bratton says that as a result he suffered an “an ascertainable loss,” because he was tricked into buying less candy than he wanted. The lawsuit claims that the Reese’s Pieces box was under-filled by 29%, while the Whoppers box was around 41% empty.

Hershey’s tried to get the case dismissed, arguing that, “Consumers are well aware of the fact that substantially all commercial packaging contains some empty space,” but a judge didn’t buy that line of thinking, allowing the case to move forward.

Bratton is suing Hershey’s under the Missouri Merchandising Practices Act (MMPA), which is meant to protect consumers from unfair and deceptive business practices.

According to the judge’s ruling, Bratton had “plausibly alleged, at minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or…has the capacity to mislead…consumers, which is sufficient for purposes of alleging an unlawful practice under the MMPA.”

Hershey is just the latest company to become embroiled in a slack-fill lawsuit: Back in April, two people sued Wise potato chips, claiming that their chips bags were 75% empty.

If Bratton’s case continues to move forward, it could set a precedent forcing companies to cut back on unnecessary slack fill practices – but the battle against corporations is not an easy one to win, so don't expect to see boxes filled all the way to the top with your favorite candy anytime soon.