I wonder if the lawyer filing this case has any affiliation with the lawyer who filed the lawsuits about Crunch Berries and Froot Loops.
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Yeah, I’m with the plaintiffs on this one. False advertising is false advertising. Perhaps this author needs a reminder of the truth behind the McDonalds coffee story.
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All of the money goes to the class action lawyers. Just like what happened in that Erin Brockovich case.
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But how much were they harmed? What are their damages here? They’re out a few bucks for some candy they wouldn’t have otherwise bought? That’s why they’re bringing this as a class action. Each individual plaintiff hasn’t suffered enough harm to make a lawsuit worth it. But here’s what they have to prove.
(1) Hershey made misleading statements about their product. Ok, that one is easy. The picture on the package is different than the product.
(2) That misleading statement was actually intended to deceive the consumer. Ehhh…that’s going to be tough to prove. It’s more likely their art department just thought it looked better with the cutouts that made it look like a Jack-o-lantern instead of just a pumpkin shape.
(3) That deception had a material impact on the consumer’s decision to buy the product. Yeah, no, I don’t see how this flies in this case. You’re really going to tell me that picture is what sold the candy? Not the sugar and the chocolate? Come on.
(4) A boring interstate commerce requirement that’s easily met here.
(5) A likelihood of injury to the plaintiff. This doesn’t mean physical injury, just any kind of harm. Ok, they’re out the money they spent on the candy. Again, this is basically proving the reason they bought the candy was the misleading picture.
Do they have a case? Maybe. Is it a strong case? No. Not at all. Are they hoping Hershey will settle anyway just to avoid the expense of even going through discovery? Oh yeah, that’s exactly what is happening here.
Also, I am not saying these companies should be able to get away with false advertising. But sketchy lawsuits from consumers who really didn’t suffer any harm is not the right way to deal with this. The FTC can also go after Hershey for false advertising, and get them to stop, and they should. I have no idea if they will, but they should. Regulation is the better route to dealing with this. As others have pointed out, the only people who are going to win in this lawsuit are the lawyers.
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(2) The ad department (professionals with a fair amount of experience) should have some idea that the picture on the tin should be a reasonable representation of the contents. The company probably figure they wouldn’t sell without adding the face.
(3) There are already cool-looking cups. Seems fairly likely that the face had a impact on the decision on purchasing this form over the cool-looking cups. It seems fairly likely that the ad department figured out that people weren’t likely to buy the product without the face on the packaging (since the item looks pretty awful without the face).
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Well I’m sure those are the arguments the plaintiff’s attorneys will make, but I don’t know that a jury is going to buy them. And you still have the issue of damages. Or the lack thereof.
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Most candy/dessert products that do have faces don’t actually end up looking much like the illustration either.
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They seems like obvious and reasonable basic arguments. There’s nothing that sticks-out that would lead a sensible jury to not “buy” them.
The damages are another issue.
One would need more information to say whether your example (looks like it melted) is an indication of misrepresentation. Certainly, one example can’t be extrapolated to “most”. And even if it’s “most”, it doesn’t mean it’s right to do.
The package should contain a fair representation of the contents.
They’re the most important issue. If you can’t show anyone was harmed, you don’t have a basis for the lawsuit.
To get to $5 Million in damages you’d have to show that the primary reason millions of consumers bought that candy was because they expected it to have a face. That doesn’t seem likely, because 1) few consumers seemed concerned about this, and 2) millions of people buy Reese’s even when it isn’t advertised with a face in the illustration. If candy sales remained more or less where they’d been in previous years then we can extrapolate that most people bought it for the chocolate and peanut butter, not for the face.
Even if a half dozen plaintiffs make the case that they personally wouldn’t have bought the candy had they known it didn’t have a face that’s only a few bucks worth of damages unless you can convince a jury that there are millions of other customers out there like them.
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Moving goal posts.
But you weren’t arguing about damages in what I was replying to. You said nothing about damages there.
The issue of damages has nothing to do with the question of misrepresentation. As I said, damages are a separate issue.
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Just as well, I never eat food that has a face.
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You do realize that
- The McDonald’s coffee story had nothing whatsoever to do with “false advertising”
- The plaintiff in that case suffered very real and very serious harm, not just mild disappointment in the product she purchased
- McDonald’s was shown to have known of the risk their ridiculously hot coffee posed to staff and customers and had been warned to lower that temperature before the incident
The two cases are not really comparable in any way.
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This has got to be the stupidest lawsuit to date.
If she really wanted the candy to look like what’s on the package, then a bite needs to be taken out of it.
If there was, I’ll bet she’d complain then sue because it wasn’t complete.
It’s going to be eaten anyway. And, it’s all going to get flushed eventually.
So, who cares?
She can carve a face into it before eating it.
It’s not a big deal.
If I were the judge, I’d throw out that case and fine her for wasting my time.
I swear, some people are just looking to get the big bucks without working.
There’s no way she was harmed by this.
And you need to show both if you want to successfully bring a case to court.
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Why don’t you like computers?
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Mac fans have gone hard core.
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Maybe this user works as tech support for the United Nations.
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SOME OF US DO!!!
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