Is This Halloween Candy A Trick Or A Treat? – Advertising, Marketing & Branding

Hershey sells Reese’s Milk Chocolate Peanut Butter Pumpkins.
Pictured on the packaging is a photo of a chocolate pumpkin
decorated with a jack-o’-lantern face and filled with
(presumably) the familiar Reese’s Peanut Butter Cup filling.
The packaging looks like this:

That’s not what the candy looks when you take it out of the
package, however. The candy doesn’t have a face on it. It’s
just a brown pumpkin . Here’s what it looks like:

Last fall, some disappointed consumers sued The Hershey Company
for false advertising, alleging that they were misled by the
Reese’s packaging. As the court explained, “Plaintiffs
claim they bought chocolate products they thought included cool,
carved designs but were disappointed when the products did not
include those designs, and, therefore, in their view, were not so
cool.”

Hershey moved to dismiss, arguing that the plaintiffs didn’t
have standing to sue because they hadn’t suffered an economic
injury.

Hershey also argued the case should be dismissed because
reasonable consumers wouldn’t be deceived by the packaging when
it is viewed in context. At least some of the packaging, it seems,
included a disclaimer that said “decorating suggestion”
and had an image of the undecorated candy as well. Here’s an
example of packaging that includes the additional context:

Hershey’s argued that the plaintiffs received the benefit of
their bargain – edible candy – and that focusing on the
carved images while ignoring the disclaimers and uncarved images
(that appeared on some of the packaging) wasn’t reasonable.
Hershey’s also argued that the image of the partially eaten
candy makes clear that the photos of the candy shown weren’t
intended to represent exactly what is inside the package.

The court never gets to the substantive false advertising
aspects of the case, however. Instead, the court dismisses the case
on the grounds that the plaintiffs lack Article III standing. The
court accepts Hershey’s argument here that the plaintiffs
hadn’t sufficiently pled that they had suffered an actual
concrete economic injury – since they did, in fact, get
chocolate pumpkins. In other words, the plaintiffs received a
“delicious, edible Reese’s product” and never alleged
that the product was defective, inedible, or failed to meet their
flavor expectations. Hershey argued “subjective feelings of
disappointment do not constitute an economic injury sufficient to
confer standing.”

In dismissing the case (just in time for Halloween), the court
wrote, “Plaintiff’s conclusory allegations as to why they
have allegedly been deprived of the benefit of their bargain all
boil down to their subjective, personal expectations of how the
products would or should have looked when unpackaged. This is not
enough to plausibly allege a concrete economic injury for purposes
of Article III standing.”

Is this case really just about a judge who doesn’t like
Halloween? Or a judge who finds plaintiff’s lawyers to be
spooky? What struck me here was that the judge saw this case as all
about the plaintiffs’ “subjective, personal expectations
of how the products would or should have looked when
unpackaged.” Given the product packaging actually had a photo
of what the product apparently looked like, it doesn’t seem to
be about consumers’ subjective expectations at all.

Vidal v. The Hershey Company, 2025 WL 2686987 (S.D.
Fla. 2025).

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