The Law is Like a Box of Chocolates: Federal Judge Allows False Advertising Suit Against Hershey’s to Move Past the Pleading Stage Because ‘Reasonable Consumer’ Determination More Appropriate for Summary Judgment If a box of chocolates is sold with the box half empty, has the chocolate company violated false advertising laws? It all comes down to whether a “reasonable consumer” would be fooled when looking at the box. A federal judge in Missouri has allowed a lawsuit on this exact issue to move past the pleading stage, ruling that the “reasonable consumer” determination is better suited for summary judgment, when more facts of the case have been developed. The case involved Hershey Co. candy such as Reese’s Pieces and Whoppers. The plaintiff in the Hershey’s suit, Robert Bratton, says that 29 percent of the Reese’s Pieces Box and 41 percent of a Whoppers box is empty. Consequently, the plaintiff argues, consumers are being deceived and Reese’s has violated false advertising laws. The judge agreed. “Hershey’s candy boxes are opaque and non-pliable, and a reasonable consumer could conclude that the size of a box suggests the amount of candy in it,” the judge ruled. Thus, the lawsuit is alive—for now. A federal lawsuit can be dismissed on a Motion to Dismiss (called a Demurrer in California state court), which argues that even if all the facts in the complaint, or pleadings, are accepted as true, the Plaintiff still loses as a matter of law. On the other hand, the judge can allow the suit to go forward so that more of the facts can be established. Once the facts have been developed through depositions and other forms of discovery, the defendant can then make a Motion for Summary Judgment to get the case thrown out if the defendant is confident the facts are in their favor. In the Hershey’s case, the judge ruled that the case can proceed beyond the pleading stage so that more facts can be developed at the summary judgment stage to determine whether a “reasonable consumer” would be deceived by the empty boxes of chocolates. The Hershey’s case is similar to a recent California case against Starbucks regarding whether Starbucks customers were being bamboozled because Starbucks puts so much ice in their iced coffees. But the judge in the Starbucks case tossed the suit on the pleadings, ruling that “reasonable consumers” could naturally expect ice to be inside their iced coffee. This is in line with other California cases, but not all. In 2014, a California District Court judge explained that, “Whether a business practice is deceptive is generally a question of fact not amenable to determination on a motion to dismiss.” Rojas v. Gen. Mills, Inc., No. 12-CV-05099-WHO, 2014 WL 1248017, at *3 (N.D. Cal. Mar. 26, 2014). However, the Judge also stated that, at the pleading stage, there are occasionally times when it could be determined based on the pleadings that a “reasonable consumer” would not likely be deceived by the packaging or advertising, and thus the case must be thrown out. The judge in Rojas stated, “[I]n certain situations a court may assess, as a matter of law, the plausibility of alleged violations of [the law].” (Emphasis added). The judge then cited to a 2010 case where the court threw out a suit because it determined based on the pleadings that a “reasonable consumer” would not likely be deceived into believing that a cereal named “Crunch Berries” derived nutritional value from fruit. If the “reasonable consumer” standard seems wishy-washy, that’s because it is. Law students are taught from their first day of law school to argue both sides of such a standard, and in practice, there are often good arguments for both sides. So, as with most things in the law, the answer in these consumer product false advertising cases is usually, “it depends.” Is a customer more likely to be fooled by too much ice in a Starbucks coffee, or by a half empty box of chocolates? The distinction is subtle, which is why, if you think you’ve been deceived by a product and think you might have a false advertising case, you should contact a lawyer to discuss your potential case.