Opinion: Hershey’s turn on the food police hot seat

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Dave Dickey

OK.  Let me start by providing full disclosure.  I like Whoppers.  A LOT.

No, not the kind that my family used to spin around campfires when I was growing up.

Nor the one you get from Burger King.

I’m talking about the malt-centered, chocolate-covered candy that was/is a staple of many movie theater outlets across the U.S. — Whoppers.

My go-to sweet treat has made a splash in the news recently, and not in a way that has the corporate lads and lassies of Hershey laughing.

A Missouri man, Robert Bratton, has filed a lawsuit, alleging Hershey is intentionally under-filling dollar boxes of Whoppers as well as Reese’s Pieces.

Bratton claims his box of Whoppers purchased last September was 41 percent empty and, for good measure, he says his Reese Piece’s box was 29 percent nothing but air.

Bratton and his attorney David L. Steelman of Steelman, Grunt & Horsefield, say Hershey is intentionally under-filling Whopper boxes, a process the Food and Drug Administration calls “slack-fill.”

Slack-filling food containers is illegal when the process is not needed to protect the contents of the packaging (think the air injected into potato chip bags to protect them from crushing in shipping).

Bratton wants Hershey to pay back at least $5 million to its customers.

Hershey tried to get the lawsuit thrown out on the face of the facts but Western District of Missouri judge Nanette Laughrey last week ruled that the case will continue because the court needed to hear more to decide if Hershey’s Whopper package is misleading the public.

District judge Laughrey wrote that Bratton “plausibly alleged, at minimum, that the packaging unfairly suggests the boxes contain more product 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 (Missouri Merchandising Practices Act).”

All of this is mildly interesting in and of itself, but becomes more interesting in the context that Nestle USA Inc. and Mondelez International Inc. have been sued recently for allegedly under-filling candy boxes and a growing unrest in general among consumers about their food and drinks.

My earliest memory of these kinds of cases goes back to 1994 when then 79-year-old Stella Liebeck won almost $3 million in punitive damages for burns she suffered from spilling McDonald’s coffee in her lap.  One juror interviewed after the case says it was about “callous disregard for the safety of the people.”

But as of late, there has been a string of cases filed against U.S. food corporations.

Recall that Starbucks had to defend itself last May after California plaintiff Alexander Forouzesh  alleged he was getting too much ice and not enough coffee in his cup.  That suit got tossed out.

Last year,  Subway decided to settle rather than fight a lawsuit over the size of its “foot long”  sandwich, which alleged some subs didn’t measure up to 12 inches.  Subway got off relatively cheap, paying $525,000,  in part because the court couldn’t quantify the scope of the problem as consumers ate the evidence.

Subway also told the court it would use a “tool for measuring bread,” (uh is that a ruler?), to ensure a sub bun is indeed a foot.

What is clear is that lawsuits against food companies are on the rise.

There were 425 active cases against food producers between 2015 and 2016 compared with just 19 cases in all of 2008, according to The U.S. Chamber Institute for Legal Reform report “The Food Court:  Trends in Food and Beverage Class Action Litigation”.

The report singles out Steelman, Gaunt & Horsefield for not only suing Hershey over its Whopper and Reese’s Pieces products, but on the same day initiating class action lawsuits against boxes of Skittles, Junior Mints, Bit-O-Honey candy and for good measure, pancake and waffle mixes.

This essentially is a fire-first-aim-later strategy to see what might stick to the court wall.

Unfortunately, unless Congress steps in, expect more of this sort of mostly nonsense from self-elected food police trolling grocery store shelves for their next buck.

About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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