A Florida woman is suing The Hershey Co. for what she claims is “false and deceptive advertising” on Hershey chocolate candies.
The woman identified as Cynthia Kelly filed the lawsuit Thursday in the U.S. District Court for the Middle District of Florida after noticing a discrepancy between Reese’s candies as depicted on their packaging and the actual products, according to the lawsuit.
The lawsuit accused Hershey of violating the Florida Deceptive and Unfair Trade Practices Act, according to court documents.
The products at the center of the dispute are Reese’s Peanut Butter Pumpkins; Reese’s Pieces Pumpkins; Reese’s Peanut Butter Ghost; Reese’s White Ghost; Reese’s Peanut Butter Bats; Reese’s Peanut Butter footballs; and, Reese’s Peanut Butter Shapes Assortment Snowmen, Stockings, Bells.
Kelly seeks to obtain $5 million in damages from The Hershey Company on behalf of the chocolate maker’s Florida customers
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According to the lawsuit, Kelly was out shopping in late October when she purchased a bag of Reese’s Peanut Butter Pumpkins for $4.49, relying on the product packaging as an indicator of how the product inside looked.
A picture of the packaging, included in the lawsuit, showed eyes and a mouth carved on top of a piece of chocolate.
However, the actual piece of chocolate inside, as an image attached to the lawsuit showed, did not have the eyes or mouth carved.
The lawsuit stated that had Kelly known that there were no detailed carvings on the piece of chocolate inside, she would not have purchased the bag.
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The lawsuit went on to include pictures of other Hershey products at the center of the dispute, contrasting the discrepancy between the depictions of the confectionaries on their packaging and the actual products themselves.
“Hershey’s labels for the products are materially misleading and numerous consumers have been tricked and misled by the pictures on the Products’ packaging,” the complaint stated.
Kelly went on to include mentions of YouTube videos where reviewers complained about the chocolates not having the same details as advertised on their packaging in the lawsuit.
“Look at the picture on the packet. It’s like a pumpkin with faces and a little mouth – then you open up the packet and you are presented with that monstrosity,” a YouTuber whose clip was mentioned in the lawsuit said, according to the U.K.Daily Mail.
Kelly is seeking to obtain class-action status for the lawsuit, which, if granted by the judge, will make an adjudication on the case applicable to all consumers in Florida who purchased the Reese’s products because of the allegedly “misleading” packaging, according to WFLA-TV in Tampa, Florida.
The Hershey Company has 21 days to respond to the lawsuit, according to the news station.
The law firm representing Kelly, The Russo Law Firm in Delray Beach, Florida, has a national reputation for using advertising claims to sue major companies. According to The Miami Herald, its other targets have included Burger King, Wendy’s and McDonald’s.
A lawyer not involved in the case, Adam R. Fox, with the international law firm Squire Patton Boggs, told the Herald such lawsuits are almost “commonplace” — but still hurt society as a whole.
“Rather than seeking to vindicate important rights that have been violated, the suit simply seizes on whimsical marketing during a holiday season and attempts to leverage one wooden interpretation of it for mercurial gain,” Fox said.
When asked about the likelihood the lawsuit would succeed, Russo told the newspaper that it depends on how the plaintiff defines success.
“If success is having a class certified and money returned to millions of consumers even though they got exactly what they paid for, this result is incredibly unlikely, approaching zero,” Fox said.
“If success is obtaining a nuisance settlement for a single plaintiff because the defendant thinks that result is more economical than spending the money on early motion practice to dispose of the case, that result will depend upon the defendant’s taste for making a point.”
He called the motive of the lawsuits, and others like it, “misguided avarice” that ends up affecting far more than the parties involved.
“In my view, suits like this start out as a failure in our system, wasting the time of the judiciary at taxpayer expense and driving up costs of consumer products for everyone because of misguided avarice,” Fox said.
