Hershey is sued over lack of artistic detail on Reese's candies

December 31, 2023 4:05 AM

She said she would not have paid $4.49 in October at an Aldi for a bag of Reese's Peanut Butter Pumpkins, had she known that the candies not only lacked the "cute looking" carved eyes and mouth shown on the packaging, but any carvings at all.

Truth-in-advertising laws are enforced by the FTC in the United States. Similar questions have been raised about burgers and tacos. False advertising is, of course, not new.

posted by cupcakeninja (96 comments total)

How about a lawsuit to make today’s cheap oil-based chocolate trash become real chocolate again?
posted by Servo5678 at 4:13 AM on December 31, 2023 [34 favorites]

The Reuter's article doesn't have any images, which makes it hard to judge.

Here's another article which shows the packaging and product:

https://www.pennlive.com/life/2023/12/woman-sues-hersheys-co-over-reeses-pumpkins-without-faces.html

Looking at the package, I'd also assume the candy had at least an attempt at a face.
posted by justkevin at 4:20 AM on December 31, 2023 [27 favorites]

I'm all out of hope
One more bad dream
Could bring a cup - with no peanut butter cream

When I'm far from home
Don't call me on the phone
To tell me your crunchie bar - has no honeycomb

It's easy to deceive
It's easy to give teases
But hard to get good Reese’s

Cups without a face
(Les tasses sans visage)
Cups without a face
(Les tasses sans visage)
Cups without a face
My snacks don’t have a gaze
You're cups without a face
posted by lalochezia at 4:40 AM on December 31, 2023 [29 favorites]

Reese's ahould be sued for describing anything they make as chocolate.
posted by GallonOfAlan at 4:44 AM on December 31, 2023 [34 favorites]

Come on, giant meteor.
posted by chronkite at 4:45 AM on December 31, 2023 [16 favorites]

I watched one of the YT videos mentioned in the article so you don't have to. (It's a full on Tiktok assault on your senses so really, don't bother).

But it did reveal that the Hershey lawyers are probably not losing any sleep over this, in fine print there are two disclaimers next to the images on the wrapper:

• "Decoration Suggestion" (Referring to the jack-o-lantern face, not sure what you're supposed to decorate with, your own peanut butter?)
• "Enlarged Detail" (This one has been used by cereal manufacturers forever to illustrate the intricate crunchiness of their product)

posted by jeremias at 5:05 AM on December 31, 2023 [6 favorites]

So she’s suing to get $4.49 back? It would cost more to sue.
posted by jmauro at 5:12 AM on December 31, 2023

It's Indistinct Lump of Chocolate Time again!
posted by dannyboybell at 5:48 AM on December 31, 2023

When you put something out into the big wide world with people in it, all kinds of ridiculous things can happen. This is why they usually print the words "serving suggestion" so that people can't complain that the product does not come with a hand holding a spoon. Those words don't appear on the photo of the package. And yet the issue really is that you get more of the product than you expect. There's more "chocolate," it isn't scraped off the surface as shown. Furthermore, there is no bite taken out of the product, as depicted in the image. It's all ridiculous. It's a five dollar issue, not a five million dollar issue.
posted by The Half Language Plant at 5:53 AM on December 31, 2023 [4 favorites]

I might be annoyed if I bought them to make a diorama or something. I had some sympathy up until this:

Kelly's lawyer has also filed lawsuits accusing Burger King (QSR.TO) and Taco Bell (YUM.N) of selling food that when served looks less enticing than advertised.
posted by Tell Me No Lies at 6:08 AM on December 31, 2023 [3 favorites]

Ah. So, she’s apparently the “consumer” part of a scheme to sue a bunch of corps over silly things, probably in hopes of getting go-the-fuck-away settlements?
posted by Thorzdad at 6:11 AM on December 31, 2023 [11 favorites]

Eh, I could see buying a bunch for a halloween party, maybe choosing them over other products because of their look, and then finding out they did not have the specific feature you bought them for. It is deceptive advertising, and I've never seen the word "decoration" apply to the removal of a substance rather than to addition and don't think anyone would be reasonably likely to interpret it that way. (Even dictionary definitions are about adding things - for every sense of the word.)

I have bought things only to find out they are not as represented. It's not really a practice to defend. Why look down on people suing about misleading advertising? Even if they're only doing it as a money grab, that's also why the companies using misleading advertising are doing it, and it sucks. And if they win and companies stop doing this so much... that makes the world just a little more straightforward for us.
posted by trig at 6:14 AM on December 31, 2023 [34 favorites]

Even if they're only doing it as a money grab

People who are using the legal system to do money grabs should not be encouraged. You may be next.
posted by Tell Me No Lies at 6:24 AM on December 31, 2023 [2 favorites]

Wow. Can't wait to see what happens when somebody sells her some Sea Monkeys.
posted by flabdablet at 6:25 AM on December 31, 2023 [6 favorites]

These seem frivolous and maybe mostly are. But I support holding companies accountable for this sort of thing. We all feel like we know the photo doesn't match the product - when that's actually pretty awful to accept as fact.
posted by tiny frying pan at 6:36 AM on December 31, 2023 [39 favorites]

I feel torn about this one. Truth in advertising laws are a good thing. Recently I proclaimed half in jest that lawsuits are what we Americans have instead of manners, which isn’t great, yeah, but in the absence of manners they will have to do. But $4.49? Really? I’m struggling to see how this makes economic sense for the plaintiff.
posted by eirias at 6:38 AM on December 31, 2023 [2 favorites]

(Usually the lawyer would be a "you don't pay me until we get paid" kind, I believe)
posted by tiny frying pan at 6:40 AM on December 31, 2023 [1 favorite]

we get into this debate a lot on mefi and i’d like to say once again that you should always sue big corporations for petty shit like this because they don’t deserve benefit of the doubt or any kind of leniency. fuck em. also i would also have been disappointed by those sad pumpkins when the package showed a fun jack o lantern
posted by dis_integration at 6:46 AM on December 31, 2023 [62 favorites]

Trying to think of a witty parallel product that did not live up to its advertised image, I realized that every. single. advertisement. ever. was a nothingburger of pure puffery.

Except oatmeal.
posted by kozad at 6:53 AM on December 31, 2023 [5 favorites]

that's actually pretty awful to accept as fact

Fully understanding that modern marketing is by its very nature a tissue of lies is the first step in getting motivated to free oneself from its baleful influence to the greatest extent achievable, a policy that I use and recommend to all.

uBlock Origin is a thing of beauty and nobody should ever browse the Web without it when given even the ghost of a choice.
posted by flabdablet at 7:00 AM on December 31, 2023 [9 favorites]

Fully understanding that modern advertising is by its very nature a tissue of lies is the first step in getting motivated to free oneself from its baleful influence to the greatest extent achievable, a policy that I use and recommend to all.

What's great is you can understand that (wow that came off condescending, did you mean that?), and also hold companies accountable.
posted by tiny frying pan at 7:04 AM on December 31, 2023 [3 favorites]

And hey, just because one is fully enlightened about how companies lie, not everyone is, and keeping companies more honest can only help those who would have been taken in. I'm cool with these lawsuits.

because they don’t deserve benefit of the doubt or any kind of leniency. fuck em.

Indeed! 🎆
posted by tiny frying pan at 7:07 AM on December 31, 2023 [6 favorites]

Deceiving reasonable consumers by falsely promising that its candies would contain "explicit carved out artistic designs." [emphasis mine]

I for one am aghast that they think children should be exposed to explicit candies.
posted by HeroZero at 7:19 AM on December 31, 2023 [4 favorites]

I have devoured my fair share of Reese's footballs, pumpkins, christmas trees and easter eggs, and can say with certainty that you don't really want the package to show the sodden shapeless lump of pale waxen brown that is the actual product. It would just make everyone sad and depressed to see it. Let us dream of happy jack-o-lanterns while we slowly masticate the dry, powdery peanut-butter mixture. The world is grim enough.
posted by mittens at 7:28 AM on December 31, 2023 [13 favorites]

Those shaped Reese's products are all worse than a regular Reese's cup. Nothing but a cynical attempt to gain shelf space in the near-permanent holiday season. Pumpkins, ghosts, bats, skeletons, footballs, Santas, holiday lights, bells, trees, snowmen, nutcrackers, hearts, bunnies, at least 28 different SKUs for eggs, nobody asked for this.

I'm not sure why, but when a Reese's isn't a cup, the chocolate is somehow worse. Anything with 'creme' or white chocolate is worse than that. The various brand extensions (Take 5, Fast Break, Nutrageous, Outrageous, ice cream bars, pretzels, etc., etc.) don't compare to the original products. The plant-based cups are fine.

The miniature cups are better than the full-size ones, and the full-size ones are better than the king-size and Big Cup and whatnot. Because of ratios or something.

Big fan of holding corporations accountable, though I would rather see it done by strong regulatory agencies than by law firms that specialize in this kind of thing.
posted by box at 7:31 AM on December 31, 2023 [11 favorites]

Honest to goodness, I got fooled a couple years ago by a similar Reese's package which depicted the cups with icing designs of Frankenstein's monster on them. The package only contained ordinary blank cups and upon closer examination the label had a disclaimer that the icing designs were only an example of how one could decorate the cups.

Good on someone for trying to hold them to account.
posted by RonButNotStupid at 7:31 AM on December 31, 2023 [22 favorites]

Can i use this same attorney to sue Mcdonalds?

Every picture of a burger shows mustard on it, but no McD's in the NYC area serves mustard on the burger.

I pull into the drive thru, see that Quarter pounder on the menu board with just a bit of yellow next to the red ketchup. I get my sandwhich and take a bite, expecting a nice mustard twang... but there's nothing.

If you complain, you are told "We don't make them with mustard", despite the mustard being on the picture and on the ingredients list!

I want to be made whole after this on-going fraud, pay me!
posted by Marky at 7:31 AM on December 31, 2023 [7 favorites]

I'm not sure why, but when a Reese's isn't a cup, the chocolate is somehow worse.

I think it's about the accordion fold on the perimeter. It's inherently strengthening due to the geometry, where the folds act as structural ribs. Also, it's poured into a cup, and then settles and cools in a shape of minimum energy while supported.

The other odd shapes are full of bulges and cool while unsupported on a conveyor. The minimum energy is a puddle, and that's what they seek. Regular chocolate used in the cups would be a total mess, so they add in (more) wax and stabilizers to keep it stiff.

And yeah, fuck deceptive advertising by big business. It doesn't matter if the stakes are low, that's no reason to let them get away with it. If you think it's ok because there's not a ton of money at play, do you also think it's ok to steal as long as you don't take that much at once?
posted by SaltySalticid at 7:40 AM on December 31, 2023 [18 favorites]

If it weren't for disappointment, I wouldn't have any appointments. - TMBG
posted by tommasz at 7:42 AM on December 31, 2023 [8 favorites]

So many hills on which I am prepared to, at least, be mildly argumentative:

I think a refund is a fair resolution.

Reese's chocolate is horrid, the sweet, salty, coarse peanut butter is the best. The best ones have the highest peanut butter ratio.

Mustard belongs on a burger, and especially on an egg sandwich.

Taco Bell's pictures vs. product are a travesty.

Truth-in-advertising laws are occasionally, enforced by the FTC in the United States, in a lackluster manner. FTFY HAND
posted by theora55 at 7:45 AM on December 31, 2023 [1 favorite]

People who are using the legal system to do money grabs should not be encouraged. You may be next.

Since the average mefite is a mega corporation with an average of $10B in annual revenue this is indeed an admonition to take to heart.
posted by phunniemee at 7:55 AM on December 31, 2023 [37 favorites]

'It's OK to lie to people because people should be smart enough to know they're being lied to' is not a perspective I expected in this thread, holy shit. Fuck these lying corporations: the utterly, fantastically fictional images of their food products that they show us is only part of the lying that their ads do to us constantly, and it's not OK. Truth matters, especially in the public square.

It's not a frivolous lawsuit if the company is actually lying through its advertising imagery: the company is rightly being sued for presenting falsehood to the public. (And if it's frivolous to sue Hershey's or Taco Bell for lying about what they deliver, where's the line where it stops being frivolous and starts being serious? Is it OK for a drug company to exaggerate the effectiveness of its medicines? Because that's what the food companies are doing, lying about what their product actually is, which is something that seems bad in any version to me.)

All the dismissive cynicism in this thread, from a site where commenters commonly freak out over every little lie a Republican utters, but giant food corporations blatantly, constantly lying about the quality of their product through ubiquitous advertising? That's fine and you should know better, you rube. Nonsense.
posted by LooseFilter at 7:59 AM on December 31, 2023 [50 favorites]

But $4.49? Really? I’m struggling to see how this makes economic sense for the plaintiff.

It's a class action lawsuit. The filers tend to see a much larger chunk than their original loss, and in this case I suspect there would be a kickback from the lawyers as well.

>People who are using the legal system to do money grabs should not be encouraged. You may be next.

Since the average mefite is a mega corporation with an average of $10B in annual revenue this is indeed an admonition to take to heart.

Nah. Given the demographic and aging of the user base the average mefite is more likely to own some property where someone can trip and sue for millions. And there are fender benders of course.
posted by Tell Me No Lies at 8:00 AM on December 31, 2023

Those shaped Reese's products are all worse than a regular Reese's cup.

They're bigger, though. I think that's the point.
posted by Selena777 at 8:05 AM on December 31, 2023

The other odd shapes are full of bulges and cool while unsupported on a conveyor. The minimum energy is a puddle, and that's what they seek.

It takes a long time for the computers to tell the robot welders to stop
posted by flabdablet at 8:05 AM on December 31, 2023 [1 favorite]

Every picture of a burger shows mustard on it, but no McD's in the NYC area serves mustard on the burger.
Apparently mustard??
posted by MtDewd at 8:08 AM on December 31, 2023 [2 favorites]

If you complain, you are told "We don't make them with mustard", despite the mustard being on the picture and on the ingredients list!

This actually has merit — not as a lawsuit but certainly a complaint to the McD’s mothership as it could just be a franchisee gone rogue. At the very least it’s likely to get you some “go away” freebie coupons.
posted by nathan_teske at 8:12 AM on December 31, 2023 [3 favorites]

i am 100% on board with this type of action and 100% weirded out that so many people here dove in early to say otherwise. like, this seems like an entirely valid thing to start up a class action suit against, because that's the available tool that we have to stop marketers from doing that obnoxious thing.
posted by bombastic lowercase pronouncements at 8:15 AM on December 31, 2023 [21 favorites]

This is just another case by the law firm that has also filed lawsuits accusing Burger King (QSR.TO) and Taco Bell (YUM.N) of selling food that when served looks less enticing than advertised.
Russo interview
posted by Ideefixe at 8:15 AM on December 31, 2023 [1 favorite]

>Nah. Given the demographic and aging of the user base the average mefite is more likely to own some property where someone can trip and sue for millions. And there are fender benders of course.

Even if so, it is hard to see how holding companies accountable for their misrepresentations could make attempts at suing over frivolous personal injury claims more common or likely to succeed.
posted by The Manwich Horror at 8:16 AM on December 31, 2023 [8 favorites]

As long as we have incredibly crafty people incentivized to work the rules to deceive people into buying their products, it makes sense to have equally crafty people incentivized to hold them to account.

That's the theory, anyway. I'm not really overwhelmed by how well this works in practice. We are awash in deception and scammery and the occasional lawsuit doesn't seem to have much impact. Maybe some statutory damage awards would help.
posted by Not A Thing at 8:19 AM on December 31, 2023 [6 favorites]

puffery is a moral wrong and by making puffery expensive through legal action one is helping a lot of people:

• the people who have to put up with the mild but pervasive annoyance caused by the puffery
• the people who have exposed themselves to mild but pervasive moral injury by taking jobs doing puffery
• the people owning the organization that are doing mild but pervasive moral wrongs by paying people to do puffery

fuck a puffery. shit i'm gonna have to add this to my weird stands list, because this is a good stand and i stand behind it. except no, i can't put it on the weird stands list because it's just an ordinary sensible stand that doesn't even rise to the level of weirdness.
posted by bombastic lowercase pronouncements at 8:21 AM on December 31, 2023 [13 favorites]

Given the demographic and aging of the user base the average mefite is more likely to own some property where someone can trip and sue for millions.

It's wet snowing right now so thank you for the reminder that I need to get out and salt my wilfully misleading nationally run ad campaign for my billion dollar brand 20 feet of public use sidewalk.
posted by phunniemee at 8:22 AM on December 31, 2023 [10 favorites]

actually you know what i'm walking that back a little bit, now that i've had some coffee and am slightly less of a highly reactive traumatized rescue chihuahua in the shape of a man, i'm realizing that the consensus in the room as the conversation has developed is in fact on the side of the anti-puffery lawsuits and that as such it was inappropriate of me to get so fighty in tone when there's not actually a fight happening
posted by bombastic lowercase pronouncements at 8:32 AM on December 31, 2023 [10 favorites]

This actually has merit — not as a lawsuit but certainly a complaint to the McD’s mothership as it could just be a franchisee gone rogue.

It's all over downstate and is an accommodation to local tastes. To the point that, back in the 80s/90s, my then-girlfriend's family out in Suffolk were just dumbfounded by me putting mustard on a burger. One of those weird "People from NY thinking their localism is the norm" things, of which there are many. Don't pick up on as many of those things here in Buffamalo... I wonder if having actual foreigners nearby helps?

And, yeah, I'd support a suit. Picture has mustard, gib mustard. Don't wanna gib mustard? Omit mustard from picture.
posted by GCU Sweet and Full of Grace at 8:47 AM on December 31, 2023 [3 favorites]

Even if so, it is hard to see how holding companies accountable for their misrepresentations could make attempts at suing over frivolous personal injury claims more common or likely to succeed.

It sets the tone and perpetuates the idea of suing as lottery money.

Holding the companies accountable for the misrepresentations is a matter for the FTC. If they're not enforcing the law, sue them.
posted by Tell Me No Lies at 8:49 AM on December 31, 2023 [2 favorites]

De minimis non curat lex.
posted by BWA at 8:52 AM on December 31, 2023

I mean, regarding the last part with Burger King and Taco Bell selling food that doesn't look as appetizing as the advertisements...I agree. So, maybe don't put me on that jury.
posted by Toddles at 8:54 AM on December 31, 2023 [1 favorite]

Previously.

This is back in August, and the FFP links to a CBC article about a suit against various fast food companies. Back then MF generally agreed that while some deception is expected and OK, there was a line that companies shouldn't cross, and that Taco Bell crossed it.

Anyway, here I think it's important to consider that novelty treats like this are decoration-adjacent. Nobody buys a regular Reeses cup for display purposes, but many people do choose holiday candies for their aesthetic. And most people don't have little tubes of orange icing lying around - as a "decoration suggestion" it's not clear nor realistic.
posted by coffeecat at 8:55 AM on December 31, 2023 [2 favorites]

....do you also think it's ok to steal as long as you don't take that much at once?

Why, YES!
said every CEO and board member ever.
posted by BlueHorse at 8:58 AM on December 31, 2023 [4 favorites]

I don't think this is puffery though. Puffery is the kind of words that no reasonable person would interpret as an objective claim of fact. Things like "best tacos in the universe!" Or "better coffee makes life better!".

Puffery is annoying but legally ok because is considered meaningless. This is (putatively) false advertising, which is illegal.
posted by SaltySalticid at 9:06 AM on December 31, 2023 [4 favorites]

Does remind me of my sister unwrapping a large foil santa chocolate to find, underneath the foil, the figure was actually the easter bunny, with the bunny ears doubling as a santa hat
posted by mosswinter at 9:08 AM on December 31, 2023 [11 favorites]

These Reese’s Pieces are terrible! And tiny to boot!
posted by chavenet at 9:10 AM on December 31, 2023 [1 favorite]

I would think this might actually put spring in the steps of candy company executives because it shows that people care more about the tiniest details of their product than about multiple genocides, not to mention the very real prospect of the death of most mammals, birds, and other vertebrates, as well as uncounted species of plants, perhaps including the cacao plant itself.

Of course, I suppose we could take it as a declaration that this kind of action is about as much power to get what they want as people think they have right now.
posted by jamjam at 9:15 AM on December 31, 2023

The candy is described as "pumpkin" and not "jack o lantern", so that's one strike against her. Another strike is that the candy appears twice on the package and one time it clearly does not have any eye or mouth markings.

I'd perhaps be marginally disappointed if I bought these, but I wouldn't feel like I'd been particularly misled.
posted by It's Never Lurgi at 9:16 AM on December 31, 2023

Every picture of a burger shows mustard on it, but no McD's in the NYC area serves mustard on the burger.

I've been trying to figure out if this comment is satire or not, but on the off chance it's serious, come to Red Hook! There's mustard.
posted by betweenthebars at 9:16 AM on December 31, 2023 [2 favorites]

So I’ve bought these and I too was a little taken aback by the mislead though mine at least had some dents in the correct locations so as to approximate eyes and a mouth… but they were actually tasty y’all so I bought some more fully knowing they were shapeless blobs and I guess that says something about my standards as compared to the plaintiff.
posted by St. Peepsburg at 9:23 AM on December 31, 2023 [2 favorites]

come to Red Hook! There's mustard.

We regret to inform you that that is not, in fact, mustard
posted by phooky at 9:26 AM on December 31, 2023 [2 favorites]

I hope she prevails, and the settlement awards her "Free REESEʼS Halloween Milk Chocolate Peanut Butter Pumpkins for life" but also includes the stipulation that every piece first has a bite taken out of it by a human (to match the packaging).
posted by achrise at 9:32 AM on December 31, 2023 [2 favorites]

As the late Mitch Hedberg pointed out, the apostrophe in the name implies ownership, so let’s see if Reese himself comes out from the shadows.
posted by dr_dank at 9:37 AM on December 31, 2023 [3 favorites]

I hope she prevails as well. But in Hershey's defense, there are few things tastier than a Reese's cup that's been pulled out of the fridge. Sorry, Metafilter, you lose again!
posted by They sucked his brains out! at 9:37 AM on December 31, 2023 [4 favorites]

And most people don't have little tubes of orange icing lying around - as a "decoration suggestion" it's not clear nor realistic.

I assume the intended "decoration" is removing a section of top-surface chocolate in the indicated shape, to let the peanut butter show through. So the proposed tool is not icing but a cutting tool, which most people have.

In my experience though, that sort of chocolate is brittle enough that it'd be hard to make a clean cut without splintering it, even if your knife is very sharp. Maybe with a heated knife?
posted by jackbishop at 9:39 AM on December 31, 2023

The Dollaramas near me (in Toronto) always sell bags of mixed Reese pumpkins (i.e., in both chocolate and pumpkin flavour) at Halloween. The bags look like this, which is no lie. I must admit I have a weakness for them and have bought more bags of them than I'd care to estimate. But then just about any chocolate and peanut butter product Reese churns out is good with me, though I agree the miniature cups are the best of their products -- at least those that I've tried.

If you'd like a way to show the Reese overlords you don't need their stinking featureless lumpy pumpkins to get your chocolate and peanut butter fix, and/or save yourself a little money, I have found these No Bake Pretzel Peanut Butter Bars make an excellent substitute for Reese peanut butter cups.
posted by orange swan at 9:47 AM on December 31, 2023 [4 favorites]

And the question of how possible it actually is to do that decoration might be legally relevant. There's a lot of established practice about how photo shoots can be done without misrepresenting food, and there are a lot of tricks that include inedible substitutes for items other than the food in question --- you can use glue for the milk and motor oil for the syrup if you're selling cereal and ice cream, because you're not selling milk or chocolate syrup. As long as the cereal is actually your cereal and the ice cream actually your ice cream, that sort of thing's OK. Likewise, for this particular illustration, the question "is that a picture of a real Reese's candy that someone painstakingly carved details into, or a digital composite?" might be legally relevant, because the first makes their "decoration suggestion" disclaimer plausibly if not entirely practically represented by a real example, and the second makes it pure fiction.
posted by jackbishop at 9:48 AM on December 31, 2023 [1 favorite]

“We tried giving them faces but they never stopped screaming…”
posted by chronkite at 9:58 AM on December 31, 2023 [7 favorites]

Next year they could put a little metal stamp in the bag you could heat up (in non-scalding water < 130°F!) and stamp the chocolates yourself. Kids would love that, but I guess it would be a swallowing danger, so you'd have to make it out if of something edible …. oh never mind!
posted by jamjam at 10:10 AM on December 31, 2023

Honestly, they should sue Reese’s for claiming that dry, grainy, shit inside their candies is peanut butter.

And don’t get me started on people pronouncing the candy’s name as ree-sees, not ree-sez.
posted by Thorzdad at 10:11 AM on December 31, 2023 [2 favorites]

Holding the companies accountable for the misrepresentations is a matter for the FTC. If they're not enforcing the law, sue them.

False advertising is also a private cause of action expressly authorized under federal law.

In contrast, I would be quite surprised if there was any cause of action against the FTC for exercising its enforcement discretion in a way the plaintiff doesn't like.

Whatever the merits of the system (I think we can agree there are better ways of handling the problem, although we might not agree what they are), lawsuits like this one are very much how the actually existing system is designed to function.

(Not that I would give this particular suit very good odds.)
posted by Not A Thing at 10:12 AM on December 31, 2023 [6 favorites]

Every picture of a burger shows mustard on it, but no McD's in the NYC area serves mustard on the burger.

It’s not a burger until you Poupon it!
posted by snofoam at 10:23 AM on December 31, 2023 [2 favorites]

I support her 100%. Fuck corporations who don't follow the rules.

People who are using the legal system to do money grabs should not be encouraged. You may be next.

Corporations should not be encouraged to get away with advertising whatever they want and delivering something entirely other.

Essentially, anyone siding with Reese's here is saying that they get to draw the line between truth and lies in advertising wherever they wish. I do not agree with that at all.

Every picture of a burger shows mustard on it, but no McD's in the NYC area serves mustard on the burger.

This is a perfect illustration. They've drawn the line that it's okay to tell you mustard is included for the price they're advertising even though it isn't. Apparently some people are cool with allowing them to draw the line there. So why should they stop? Leave off the ketchup and lettuce. Why bother to include cheese on the cheeseburger? Hell, think of the profit they could make if they could get you to pay them and they hold all the condiments, the patty, and the bun!

Lines are being drawn. Corporations shouldn't be the ones holding the pen.
posted by dobbs at 10:39 AM on December 31, 2023 [18 favorites]

False advertising is also a private cause of action expressly authorized under federal law.

In contrast, I would be quite surprised if there was any cause of action against the FTC for exercising its enforcement discretion in a way the plaintiff doesn't like.

Barring some discrimination against a protected class, there really isn't.

"Don't sue the corporation against whom you have a cause of action for doing the thing, who actually did the thing, and who is profiting off the thing; instead, sue the government agency of whom none of these is true" is a take absolutely breathtaking in its badness.

'It's OK to lie to people because people should be smart enough to know they're being lied to' is not a perspective I expected in this thread, holy shit.

There's a nonzero percentage of the Mefi population a little too invested in the idea that they are waaaaaaay too smart to be fooled and anyone who isn't deserves what they get for not being as smart as they are. Add in decades of corporate propaganda about how it's okay for them to use every means, fair and foul, including lawsuits, to make money, but anyone suing them must be a scammer looking for a payout, and here we are. I guess to be consistent I mustn't blame these people for not being bright enough not to be fooled. But it's kind of embarrassing.
posted by praemunire at 10:50 AM on December 31, 2023 [13 favorites]

they should sue Reese’s for claiming that dry, grainy, shit inside their candies is peanut butter.

Here's hoping the outside gets docked as well, for calling that vomit-tasting Hershey's substance chocolate.
posted by Rash at 10:51 AM on December 31, 2023 [3 favorites]

Barring some discrimination against a protected class, there really isn't.

Really going to have to go with a Citation Needed here. Suing law enforcement for not doing their job has a long tradition.
posted by Tell Me No Lies at 11:01 AM on December 31, 2023

The bags look like this, which is no lie.

Okay, sir, your photographs are accurate depictions of the contents, so you're solid there. But I'm afraid I'm going to have to deduct five points from your franglais score.

The correct name would have been Formes d'Halloween Shapes.
posted by GCU Sweet and Full of Grace at 11:08 AM on December 31, 2023 [1 favorite]

Lying is not OK. Lying in pictures is also not OK.

This is how to fight it. Because a middle-aged woman just saying, "Lying is not OK," might not have the same weight. If a few hundred individual middle-aged women, or isolated men who deign to admit they care, say it, it might be even less effective, not more - it would lead to judging the speakers more than the agents doing the lying.


The legal systems we have in place are mechanisms slowly built over thousands of years to have the authority that they do - it's not easy to make powerful people listen to any kind of reason when they don't want to. This is our best tool for that.

We know that -- more than an executive or a shareholder -- they are built to examine questions like this, decide on their merits (truthfulness, _systemic_ impacts, intents behind actions), and then greatly amplify and remember those that pass muster.

This is why both the persons bringing the action and the persons affected by the court's decision will respect it enough to make it have any effect.


Use it or lose it. I'm glad she's doing her part, and the lawyer is doing his. Maybe I'd find him unbearable in person, or her, but that doesn't matter; they have put themselves at a tiny spot at the fron, holding chaos at bay; Whatever their venal or annoying reasons, I'm glad they're there.



If you let Hershey's or Taco Bell misrepresent small things, they're going to start pushing that boundary and call it "boldness," "creativity," or "smart" -- and it's not. Thismay be the only way to tell them that.
posted by amtho at 11:15 AM on December 31, 2023 [8 favorites]

Population aggrieved by the unspecific form of a pumpkin shaped candy, pearls clutched.
posted by djseafood at 11:17 AM on December 31, 2023

Except for mosswinter mentioning their sister's Santa Bunny, nobody has said anything about children in this thread yet. Children are, theoretically, the target market for candy (or is that no longer true?). I think it does matter if a child buys a package of peanut butter cups expecting Frankenstein on them, or for them to look like jack-o-lanterns, and finds something else.

"Won't somebody think of the children?"
posted by Well I never at 11:25 AM on December 31, 2023 [3 favorites]

This actually has merit — not as a lawsuit but certainly a complaint to the McD’s mothership as it could just be a franchisee gone rogue.

I just asked my BIL, who operates 15 stores, and he says the menu items and ingredients are part of the franchise agreement, and operators have zero lee way in making changes. Not only that, but ingredients are about the worse thing you want to make changes to, since having everything the same everywhere regardless of who actually owns the store is basically the entire reason for McD's success.

Send a message to corporate they'll send a grim reaper (my BIL's previous role before he retired from corporate and got his own stores) from Chicago to go fuck up the owner of your stores in NY and make them regret their life's choices.
posted by Back At It Again At Krispy Kreme at 11:28 AM on December 31, 2023 [11 favorites]

Really going to have to go with a Citation Needed here. Suing law enforcement for not doing their job has a long tradition.

A long tradition of...failure, particularly at the federal level, where this case would have to be, as involving a federal agency. For example:

Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone

Molchatsky v. United States, 713 F. 3d 159 (2nd Cir. 2013) ("Plaintiffs' harm ultimately stems from the SEC's failure to investigate Madoff and uncover his Ponzi scheme. As a result, the conduct Plaintiffs seek to challenge is "too intertwined with purely discretionary decisions" made by SEC personnel. Gray v. Bell, 712 F.2d 490, 515 (D.C.Cir.1983); see generally id. at 515-16. Despite our sympathy for Plaintiffs' predicament (and our antipathy for the SEC's conduct), Congress's intent to shield regulatory agencies' discretionary use of specific investigative powers via the DFE is fatal to Plaintiffs' claims. See Berkovitz by Berkovitz v. United States, 486 U.S. 531, 538 & 538 n. 4, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (quoting H.R.Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945)). In satisfaction of the first prong of the DFE, the SEC retains complete discretion over when, whether and to what extent to investigate and bring an action against an individual or entity. See 15 U.S.C. § 78u(a)(1); 17 C.F.R. § 202.5(a)-(b). The conduct in question here meets the second prong of the DFE by virtue of the SEC's choices regarding allocation of agency time and resources being sufficiently grounded in economic, social and policy considerations") (case against the SEC for not pursuing Madoff earlier)

But since your comment, which came first, actually contains an implicit embedded claim of fact--that a cause of action would lie against the FTC in such a case--how about you offer a citation? Under what statute or common law authority would such a case lie against a federal regulator (the FTC is a regulator, not law enforcement) in the United States for merely exercising its discretion not to bring suit in this scenario? Again, we are excluding improper motives by the agency, such as discrimination or possibly political retaliation I suppose, which have not even been alleged here.

(We'll leave aside all questions of why it would make sense to punish the government and not the wrongdoer when the wrongdoer breaks the law and makes the money, because apparently your own tax dollars subsidizing a giant corporation's wrongdoing does make sense to you.)
posted by praemunire at 11:44 AM on December 31, 2023 [4 favorites]

Every picture of a burger shows mustard on it, but no McD's in the NYC area serves mustard on the burger.

My local McDonalds get around this by having most of the food in their ordering kiosk with a 'picture not found' message, even for basic stuff like mcnuggets. McDonalds even has a pared-down menu right now -they don't offer that many different foods! I'd love to have that graphic/web design job. "Yeah, boss I've got mcnuggets jpeg on the schedule - I'll probably get to them next year, 2nd or 3rd quarter. "

And the digital menu boards only display for like 30 seconds - so no way you can really look at what is on the pictures before it displays something else.

Also this thread is blowing my mind - I like Reeces well enough (to ignore the shade above) and I'm pretty sure I've had ones with pumpkin faces (and others) like described above. Or maybe not. Time to go buy more candy.
posted by The_Vegetables at 11:47 AM on December 31, 2023

Whatever the merits of the system (I think we can agree there are better ways of handling the problem, although we might not agree what they are), lawsuits like this one are very much how the actually existing system is designed to function.

Where this sort of case makes my hairs stand up is my experience as a small business owner with this sort of thing, where it comes in the form of a threatened lawsuit from a firm well-known for threatening such suits, and you’re pretty much guaranteed to be out a few thousand dollars resolving that threat aside from resolving what the complaint was about. We got threatened with an ADA lawsuit because I used Bootstrap 3 that didn’t use colors with the appropriate WCAG-compliant contrast. Took me about five minutes to fix when the threat came in, and then a stack of $$$ to hire someone experienced in dealing with threats from that particular law firm.

Part of the reason we closed our retail business was over another similar situation.

So yeah, screw Reese’s for their crappy misleading packaging, but also screw the law firm that is probably out there threatening small food producers over similar problems just to shake them down for the amount they have carefully tuned to be lucrative for them but less expensive than actually taking it through litigation.
posted by jimw at 12:16 PM on December 31, 2023 [1 favorite]

I have some thoughts on this one.

Ever since the Reagan administration ran with the Chicago School philosophy US courts have rolled back private rights of action. Including making it harder to sue, harder to pass key stages of litigation, and harder to certify plaintiffs’ classes. Making the process expensive and slow are also significant impediments, but the primarily mechanism is simply by pushing for private arbitration, which is what recently saved Ticketmaster in their recent lawsuit. 



It’s been very effective. You are more likely to get struck by actual lightning than win a monetary award in forced arbitration. Quote:


Just 577 Americans won a monetary award in forced arbitration in 2020, a win rate of 4.1%--below the five-year-average win rate of 5.3%. More people climb Mount Everest in a year (and they have a better success rate) than win their consumer arbitration case.

There has been a systematic and ongoing propaganda campaign to demonize private litigation. Like the hot coffee case against McDonalds, it’s mostly based on lies. When that isn't sufficient taking situations that are a bit sensational, like suing over the shape of a candy, and really pushing how unreasonable and silly it is, regardless of the legal merits. The goal is create a system where the public feels they can’t get any justice, that attempting to make any changes to the unfairness that they face is pointless.

The private right of action ensures business practices are fair when government/law/society have decided not to bother with provided actual oversight. Imagine if a politician promised to address all the price fixing schemes, reform real estate industry, predatory apparel and sporting cartels, the credit card industry, and the walled gardens of app stores.



And yet recently we have seen:



• National Association of Realtors is paying a a $1.8 billion judgment, despite being the largest lobbyist in the country


• Varsity sports wear is getting hammered by private class action suits
• Ultimate Fighting Championship is set to face (and hopefully lose) an antitrust lawsuit that will prohibit it’s monopsony and their “concerted action that unreasonably restrained trade”. UFC should be compelled to pay treble damages which may be as much as $4.8 billion


• NCAA vs Alston means that college athletes are actually earning an income from their labor


• the VISA-Mastercard cartel were just fined $5.6 billion in restitution


• Epic v. Google saw the titan of tech lose it’s monopoly on payment processing and App Store restrictions.


• RealPage case in Georgia is going to potentially shake up many industries data sharing and price fixing, from hotels to airfare.





All of these were driven by plaintiff lawyers doing the work of seeking justice, and all of these examples are from just from anti-trust law. Now imagine other law domains, like nearly all the accessibility and disability enforcement comes in the form of ADA lawsuits. And yea, your website should be accessible. And this process is by design. The vast majority of antitrust enforcement, a core government responsibility in most of the world, is handled in the US by private litigation. 

Litigation is a fundamental right and process embedded from the very start of the country- it’s the central argument of historian Bill Novak’s “The Myth of the ‘Weak’ American State.”
posted by zenon at 12:36 PM on December 31, 2023 [18 favorites]

yall sleepin on Mallow Cups
posted by glonous keming at 12:36 PM on December 31, 2023 [6 favorites]

We got threatened with an ADA lawsuit because I used Bootstrap 3 that didn’t use colors with the appropriate WCAG-compliant contrast. Took me about five minutes to fix when the threat came in,

Just a five-minute fix to make your website accessible (or more accessible) to people who are blind or low-vision, and yet you simply did not do it until you got threatened with a suit. It seems to me that the system is working as designed here: a business owner was unconcerned with ensuring compliance with a long-established law until they were threatened with enforcement.

(Have you ever seen a blind/low-vision person struggling to use the Internet to perform basic life functions that the magic of the web ought to make easier for them? Because I have.)
posted by praemunire at 12:57 PM on December 31, 2023 [15 favorites]

It's like being promised dick veins and then not getting dick veins.
posted by srboisvert at 3:48 PM on December 31, 2023 [4 favorites]

Although if you found one in your Reese's you should definitely sue.
posted by mittens at 4:47 PM on December 31, 2023 [2 favorites]

I mean, _asking_ a small business to fix something they're not doing as a pattern or on a large scale, makes sense as a course of action _before_ even threatening to sue.

I'm on team geez-louise-accessibility-is-way-more-important-than-difficult. Especially coming from professionals - but suing small businesses before communicating with them is not the best possible world we could have. That said, all this is predicated on the notion that the lawsuit was the first thing jimw heard about this person's problems with the site.


That aside, I think it likely that a law firm suing McDonalds is in a different class than one going after a one- or two- person shop.
posted by amtho at 5:11 PM on December 31, 2023 [4 favorites]

I mean, _asking_ a small business to fix something they're not doing as a pattern or on a large scale, makes sense as a course of action _before_ even threatening to sue.

Probably individuals shouldn't have to ask businesses to obey the law, though. I am sure the small business owner here is not a terrible person and had no particular antipathy against the disabled, but it simply was not sufficiently important to him to make sure his website was accessible, even though that's the law. He shouldn't have needed to be asked. It costs more money to break the law than to obey it in the first place--that's as it should be.

(For the record, a private party can't get damages for an ADA violation, only equitable relief, though they can be awarded attorneys' fees. Spend the five minutes fixing the problem and there won't even be much motivation for a firm to file suit. Indeed, it would arguably be frivolous for them to do so.)
posted by praemunire at 7:16 PM on December 31, 2023 [9 favorites]

It's a class action lawsuit. The filers tend to see a much larger chunk than their original loss, and in this case I suspect there would be a kickback from the lawyers as well.

Based on news reports of large class action settlements, I expect the attorneys’ firm will receive $17 million and each class member will receive a 29 cent Hershey coupon.
posted by Warren Terra at 10:04 PM on December 31, 2023 [1 favorite]

About the McDonald's thing, out of curiosity - don't they give out mustard, ketchup, and mayo packets for free? (I haven't been there for a long time.)
posted by trig at 4:23 AM on January 1

Based on news reports of large class action settlements, I expect the attorneys’ firm will receive $17 million and each class member will receive a 29 cent Hershey coupon.

My last class action payout from the Illinois Biometric Privacy Law cases was ~$7 from facebook. The law's penalty per violation was $1000 to $5000 so the class action lawyers are no longer exactly serving their clients well. There were some pretty big settlements early on but now it is kind of a joke.
posted by srboisvert at 4:44 AM on January 1

I made $100 from some class action Google thing. That was worth it to me.
posted by tiny frying pan at 5:59 AM on January 1

made $100 from some class action Google thing. That was worth it to me.

Google also just agreed to $4 Billion settlement for Chrome Incognito Privacy violations.
posted by srboisvert at 6:15 AM on January 2

About the McDonald's thing, out of curiosity - don't they give out mustard, ketchup, and mayo packets for free? (I haven't been there for a long time.)

Nope. No ketchup unless you ask for it and I've never seen mustard or mayo packets at McD's.
posted by cooker girl at 9:38 AM on January 2

I am genuinely surprised!! I have this strong yet vague association of condiment packets with fast food burger places.
posted by trig at 11:14 AM on January 2

I worked at McDonalds in high school and there were mustard packets back then (2003-2004). Mayo I dont think so. But color me also SHOCKED that McDonalds wouldnt put mustard on its burgers. I also think its a bunch of rogue franchises.
posted by LizBoBiz at 4:03 PM on January 2