Like a chocolate-covered hand from the grave, a class action lawsuit against candy maker Hershey may be coming back to life.
A group of consumers unsuccessfully tried to sue the company last year, claiming they paid a premium for its Halloween-themed "Reese’s peanut butter pumpkins” because they expected treats with cut-out jack-o’-lantern faces as shown on the wrapper. Instead, the consumers said, they got a smooth, peanut-butter-filled “chocolate blob.”
A federal judge tossed the suit last month, but the plaintiffs have now amended their complaint, saying they have pricing data to bolster claims they suffered economic harm.
The consumers contend they paid up to 25% more for the candies because they were deceived by labels depicting a pumpkin-shaped chocolate with triangle eyes and a grinning mouth carved to reveal the filling beneath.
Hershey in court papers, called the amended complaint a “futile effort to resurrect this meritless case.” The company did not respond to a request for comment. The revised lawsuit still requires approval from the judge, and Hershey lawyers have until Monday to file a motion opposing its acceptance.
Plaintiffs’ counsel Anthony Russo of the Russo Firm in Boca Raton, Florida, sued Hershey on behalf of consumers in May 2024 in Fort Lauderdale federal court, alleging Reese’s packaging violated Florida’s Deceptive and Unfair Trade Practices Act and seeking at least $5 million in damages. Russo did not respond to a request for comment.
In dismissing the suit, US District Judge Melissa Damian noted that the plaintiffs didn’t claim the peanut butter-and-chocolate treats were unfit for consumption or didn’t taste as expected.
Rather, the judge wrote, the consumers' grievances “all boil down to their subjective, personal expectations" of how they thought the candy should have looked. That's not enough to show they suffered a concrete financial injury, she said in dismissing the suit for lack of standing.
But Damian left the door open for the plaintiffs to amend their complaint. She noted the original suit lacked key information on what the consumers might have paid for the candy if the wrapper did not have allegedly deceptive images.
So-called price premium claims like this have become increasingly common in consumer class actions. They are used, for example, to challenge allegedly deceptive descriptions of products’ ingredients, geographic origins or environmental friendliness. The common thread: consumers say they wouldn’t have paid as much for the items or wouldn’t have bought them at all, if not for the allegedly misleading labels.
In many of these cases, failure to link deception to a measurable economic harm proves fatal.
For example, a 2022 class action accused Publix Super Markets of misleading consumers into believing its “honey-lemon” cough drops contained actual lemon. A federal judge in Miami dismissed the case, a year later, finding the plaintiffs failed to show that cough drops without lemon imagery sold for less, or that lozenges with similar ingredients but allegedly non-misleading labels were cheaper.
The Reese’s plaintiffs, however, seem better equipped to offer market evidence of a quantifiable price premium. Their proposed amended complaint compares the prices of regular and pumpkin-shaped Reese’s candy and finds the pumpkin version costs about 20% more per ounce at Target and Walmart -- and 25% more on Hershey’s own website.
“That same-brand differential is concrete, measurable, and material,” the plaintiffs argue, seeking the price difference between the pumpkin and regular peanut butter cups as damages, along with attorneys’ fees and costs.
In responding to the original lawsuit, Hershey lawyers from Shook, Hardy & Bacon argued that no reasonable consumer would be deceived into thinking that the individual candies were carved with faces. The candy packaging includes the words “decorating suggestion” next to the chocolate jack-o’-lantern image, they noted.
The packaging also includes a photo of the candy without carvings -- and with a bite taken out of it.
That partially-eaten image should alert anyone "exercising basic common sense that the candy will not appear exactly as imagined on the package,” wrote Shook partner Daniel Rogers, who did not respond to a request for comment. After all, he added, no one expects to buy food "with a huge chunk bitten out.”
Whether the court ultimately allows the amended class action to rise from the grave may depend on whether consumers were tricked into buying this treat.
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