Enlarge A Hershey's Milk Chocolate Bar is arranged among Reese's Pieces, also a Hershey Co.… more 
 
 A Columbia man had a small win Wednesday, when a federal judge denied The Hershey Co.'s motion to throw out his case, KCUR reports. 
 
 At issue? Empty space. When Robert Bratton purchased boxes of Reese's Pieces and Whoppers candies from a Columbia grocery store, he was surprised by the amount of empty space when he opened the boxes. The size of the packaging made him think he was getting more product. 
 
 Enlarge A Hershey's Milk Chocolate Bar is arranged among Reese's Pieces, also a Hershey Co.… more 
 
 In industry speak, the empty space is known as "slack-filled," and according to his suit, the Reese's Pieces packing was comprised of 29 percent empty space, while the Whoppers packaging had 41 percent empty space. 
 
 Bratton originally filed the case in state court, but it has since moved to federal court. His case is tied to a state law created to protect consumers from unfair and deceptive business practices. He's hoping to gain class-action status, but a federal judge has deferred that decision. 
 
 Leslie covers entrepreneurs and technology, retail, and marketing. ||||| Sure, it’s vaguely annoying that boxes of candy aren’t full all the way to the top, but most people don’t file federal class actions over a lack of peanut butter candies. A man in Missouri has done exactly that, claiming that boxes of Reese’s Pieces and Whoppers that he purchased were dramatically under-filled. 
 
 The case is about “slack fill,” which is the empty space in a package. Sometimes this serves a purpose, like the extra air in a bag of cookies or chips that protects the contents. Sometimes it’s produced when the contents of a package settle during shipment. 
 
 READ MORE: When Does The Extra Space In Your Potato Chip Bag Go From Annoying To Deceptive? 
 
 “Consumers are well aware of the fact that substantially all commercial packaging contains some empty space,” Hershey’s attorneys argued. 
 
 Yes, that’s true, but how much empty space is reasonable to protect the product inside without wasting resources on extra packaging? 
 
 In his complaint [PDF], the plaintiff accuses Hershey of under-filling the Reese’s box by around 29%, and the Whoppers box by 41% to mislead shoppers and make them believe that the box is more full than it is. 
 
 How under-filled is that? The complaint includes handy visual aids. 
 
 The extra space isn’t necessary to protect the candy, since both products are also sold in flimsy plastic bags. Why are the boxes so under-filled? 
 
 Hershey, of course, doesn’t answer that question. The company sees nothing wrong with this packaging, because the number of candies and the weight are printed right on the outside, and shoppers can pick the box up and feel its weight. 
 
 “It is not possible to view the product packaging without also seeing the net weight and quantity disclosures,” the company’s motion to dismiss the case [PDF] argues. 
 
 Besides, Hershey argues, an under-filled box of candies rattles. “Any consumer would recognize immediately upon picking up a box of Reese’s Pieces or Whoppers that its contents rattle noticeably and audibly with every movement,” the company notes. 
 
 Hershey’s arguments did not persuade the judge, who noted in her opinion [PDF] that cases cited by Hershey’s attorneys did not apply in the state of Missouri, and that such cases often depend on “reasonableness” and what decision the typical shopper would make. 
 
 The case was not dismissed. Perhaps Hershey will eventually have to explain what purpose that empty space in the box serves. 
 
 (via KCUR) ||||| What would Elliot, dear friend of E.T. the Extra Terrestrial, say? 
 
 When Elliot scattered a trail of Reese’s Pieces for his alien friend in Stephen Spielberg’s classic movie, he probably wasn’t thinking about the candy’s packaging. 
 
 But Columbia, Missouri, resident Robert Bratton was. 
 
 Bratton bought several boxes of Reese’s Pieces and Whoppers malted milk balls at a Gerbes grocery story in Columbia for $1 apiece. 
 
 He says he was influenced by the size of the opaque boxes, which led him to believe he was buying more candy than he did. Turns out the boxes, as is commonplace in the industry, had a lot of “slack-filled” — or empty — space. 
 
 So Bratton did what any candy-loving American would do: He sued the maker of the candies, The Hershey Company. The class-action lawsuit, originally filed in state court last year, was moved by Hershey to federal court. 
 
 And in a setback for the company on Wednesday, the judge denied its motion to throw out the case. Although surviving a motion to dismiss is a fairly low bar – Bratton only had to allege facts stating a plausible claim for relief – it means that Bratton may yet get his day in court. 
 
 Bratton sued Hershey under the Missouri Merchandising Practices Act (MMPA), a 50-year-old law aimed at protecting consumers from unfair and deceptive business practices. 
 
 In her 22-page ruling, U.S. District Judge Nanette Laughrey found that Bratton had “plausibly alleged, at minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression, which is sufficient for purposes of alleging an unlawful practice under the MMPA.” 
 
 “The Court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading,” Laughrey wrote. 
 
 Laughrey made her finding even as she noted that the boxes specifically list their net weight, the number of pieces per serving (51 in Reese’s Pieces’ case, 18 in Whoppers’ case) and the number of servings per container (“about 3” in Reese’s Pieces’ case, “about 3.5” in Whoppers’ case). 
 
 But as Bratton complained, about 29 percent of the Reese’s Pieces boxes and about 41 percent of the Whoppers boxes consisted of “slack-filled,” or empty, space. 
 
 That, he said, led him to suffer “an ascertainable loss” because “the actual value of the Products as purchased was less than the value of the Products as represented.” 
 
 Hershey joins several other candy makers, including Nestle USA Inc. Mondelez International Inc., that have been sued recently for allegedly under-filling their candy boxes. 
 
 Hershey can take some consolation in Tuesday’s ruling. Laughrey deferred a decision on whether Bratton could pursue his claims for unjust enrichment on behalf of others. And unless Laughrey decides to certify the case as a class action, it’s unlikely Bratton will be able to pursue it as an individual case. That’s because his individual damages would likely be so miniscule as to make it economically unfeasible. 
 
 Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.
– Hell hath no fury like a sweet tooth scorned. Consumerist reports a Missouri man disappointed with the amount of candy in his boxes of Reese's Pieces and Whoppers is suing Hershey's. According to KCUR, Robert Bratton bought a number of boxes of each candy at a grocery store in Columbia for $1 each. But he says he would have been less likely to spend that money if he knew how under-filled the boxes would be. Bratton's lawsuit claims the boxes of Reese's Pieces were under-filled by about 29% and the boxes of Whoppers by about 41%. His lawsuit argues shoppers are being misled. But Hershey's counters that customers are "well aware" of the concept of "slack fill," by which packages contain some empty space either due to settling or to protect their contents. Besides, the company argues, the total weight and number of candies is printed on each box. Finally, Hershey's says the empty space shouldn't be a surprise to customers as the boxes rattle when picked up. A judge denied Hershey's motion to dismiss the case this week but also deferred on Bratton's desire to turn it into a class-action suit, the Kansas City Business Journal reports. It remains to be seen how much slack fill is too much slack fill, legally speaking, when it comes to our favorite candies. (In related news: Your favorite Hershey's treats may be shrinking soon.)