In a so-called “slack-fill” case, Judge Laughrey issued an opinion denying Hershey Company’s motion to dismiss a putative class’s MMPA and unjust enrichment claims, which involve allegations that Reese’s Pieces and Whoppers candy boxes improperly suggest that they contain more product than they actually do. According to the opinion, consumers average a whopping 13 seconds making in-store purchasing decisions, further supporting the plaintiff’s contention that consumers attach significant importance to the size of candy boxes, and that he was misled to believe that he was purchasing more product than he actually received.

The court rejected Hershey’s argument that the MMPA claim was not plausible, reasoning that the MMPA has been interpreted as “cover[ing] every unfair practice imaginable and every unfairness. . . .” What’s more, a “plaintiff need not even allege or prove reliance on an unlawful practice to state a claim under the act.” Judge Laughrey concluded that the plaintiff plausibly alleged that the packaging suggests “that the boxes contain more products than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression, which is sufficient for purposes of alleging an unlawful practice under the MMPA[,]” relying in part on the Missouri Court of Appeal’s recent decision in Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308 (Mo. Ct. App. 2016), where the Eastern division rejected an analogous argument in the “all natural” context and declined to decide how a “reasonable customer” would perceive the term “all natural” at an early stage. Her conclusion was further buttressed by the fact that Federal regulations prohibit certain forms of slack-fill in packaging. See 21 C.F.R. 100.100(a) (also noting six exceptions to prohibition against slack-fill).

Judge Laughrey also rejected Hershey’s argument that the claims should be dismissed because the labeling on the packages was clear and accurate, so it tells consumers how much candy is in the box. In rejecting this argument, Judge Laughrey explicitly rejected the salty holdings of Kelly v. Cape Cod Potato Chip (click here for a recap from my colleague Andy’s previous blog on this case), a case decided by Judge Whipple in which he dismissed an MMPA challenge to a “natural” claim on the front label of a bag of potato chips. Judge Laughrey notably found that Kelly was wrong to the extent it holds that consumers are responsible for evaluating whether some information on a package label is consistent with other information on the label, particularly considering the Missouri Court of Appeal’s decision in Murphy.

Key Takeaway: This decision suggests that Missouri courts will continue to make it more difficult for defendants in these types of cases to achieve early dispositive motion success because determining how “reasonable consumers” perceive packaging is factual and not obvious as a matter of law. The other takeaway is that I can feel better about myself for eating the entire box of Reese’s Pieces yesterday…..

The case is Bratton v. Hershey Company, No. 16-cv-4322-NKL, 2017 WL 2126864 (W.D. Mo. May 16, 2017).