Trick or Treat? — Hershey’s Misleading Packaging Lands Itself in a $5 Million Lawsuit

KAITLIN PRECE—Hershey “tricking” its customers rather than “treating” them may come at a high cost. The expression “things are not always what they seem” has never been more true when it comes to consumer products. As creativity and technology continue to take new heights, so do the embellishments of advertisements. 

Cynthia Kelly purchased multiple packets of Hershey’s Halloween themed candies. However, when she opened them, to her surprise, they were not how they were depicted on the package. Specifically, the pumpkins, ghosts, bats, and footballs did not have any of the details or carvings shown on the packages; the candies were simply chocolate shapes.

Kelly is not the only consumer with this experience. As news broke, others began to join her in her dissatisfaction. Consumers took to the internet and began posting YouTube videos broadcasting their disappointment when they opened the candies and realized they were just “chocolate blobs.” In these videos, consumers began claiming Hershey’s had “lied” to them.

Angered by this, Kelly filed a federal class action lawsuit alleging a violation of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce….

FDUTPA can be a formidable statute because of the extensive range of potential claims that plaintiffs can pursue due to the expansive nature of what constitutes an unfair business practice. The Florida Supreme Court has defined “unfair practice” broadly to include any act “that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Therefore, as you can imagine, FDUPTA claims can arise from a multitude of situations—even one’s involving chocolate pumpkins, bats, ghosts, and footballs. 

Taking advantage of this expansive cause of action, Kelly and other consumers are not playing around— suing Hershey’s for $5 million over a piece of candy that costs $4.49. But why sue over $4.49? Anthony Russ, representing the plaintiffs, explains that this is a necessary “reality check.” He alludes to the fact that although today it can be a small piece of candy, tomorrow it could be something bigger that takes a toll on consumers daily lives. Russ warns that if these businesses are not held accountable, consumers will lose all control.

Hershey’s is not the only business that has recently been sued for deceptive business practices. Consumers have begun to lose confidence in Burger King and Taco Bell as well, suing them over advertising the items as larger than they are and skimping on fillings.

FDUPTA was created to protect consumers, even from things that may seem trivial at first glance. In the complaint, Kelly argues that Hershey’s is looking to boost sales with the help of these deceptive images on their packages and that she would not have purchased these items had she known they lacked any carvings. With the possibility of this class action growing in size due to the publicity and attention this has been receiving, Hershey’s could be facing a penalty of $5 million. If this lawsuit were to proceed, by not allowing Hershey’s to slip by with a slap on the wrist, it will not only force corrective practices within Hershey, but also send a message to other large businesses that these allegations will not be taken lightly. 

It is not yet known if this case will be presented in front of a judge, but regardless the filing of this lawsuit alone puts other businesses on notice that consumers have no tolerance for deceptive business practices, no matter how big or small, and if businesses try to cross the line, they will be the one’s losing in the end.