A Whopper of an Order on Slack-Fill Litigation under the MMPA
Since 2006, Robert Bratton regularly purchased 5 oz cardboard boxes of Whoppers and 4 oz cardboard boxes of Reese’s Pieces several times a month. Although Mr. Bratton initially “expected the boxes to be full,” he guessed that the 600 or so boxes of Whoppers and Reese’s Pieces that he purchased since 2006 contained between 30-40% empty space or “slack-fill.” Mr. Bratton ultimately filed a putative class-action lawsuit in 2016, alleging that the slack-fill in each box of candy was a violation of the MMPA.
For those familiar with the MMPA, it should come as no surprise that Mr. Bratton’s knowledge of how much candy and how many empty space was in each box of Whoppers and Reese’s Pieces, along with his continued purchases of the candy for over 10 years was fatal to his MMPA claim. In Bratton v. The Hershey Company, No. 16-cv-4322, 2018 WL 934899 (W.D Mo. Feb. 16, 2018), Judge Laughrey correctly noted that “causation is a ncessary element of an MMPA claim,” and that a plaintiff who “did not care” about an allegedly misleading marketing practice, or who “knew about” the practice and “purchased the products anyway,” was not injured by the practice.
In response to the plaintiff’s counter-arguments on causation, the court also noted that, “while the reasonable consumer standard is relevant to whether a practice is unlawful under the MMPA, it is not relevant to whether there was an ascertainable loss to the plaintiff.” Thus, whether a reasonable consumer would have been deceived is “immaterial,” because the plaintiff must show that he or she was injured in order to succeed on an MMPA claim, i.e., “they would not have purchased the product” if the defendants had told them about a potential defect.
Thanks to our colleague Jim Muehlberger for alerting us to the order. If you are interested in reading more about slack-fill litigation, please check out “The Food Court,” a special report prepared by Jim and Cary Silverman for the U.S. Chamber for Legal Reform.