The Missouri Merchandising Practices Act: Is it time for reform?

Don’t like the “slack-fill” in your potato chip bag? Well, luckily for you, under the current Missouri Merchandising Practices Act (MMPA), you can sue for that! Plaintiffs’ attorneys have been filing “slack-fill” lawsuits in Missouri for years. For example, in 2016 a case was brought against Hershey for slack fill in Reese’s Pieces and Whoppers containers. The case survived a motion to dismiss by the Western District of Missouri under the MMPA despite the fact that packaging showed the amount in every serving, the number of servings, and the weight of the packaging. Ultimately, the plaintiff lost. The judge said the plaintiff was not really harmed because he knew about the “slack-fill” and bought the candies anyway. Frivolous cases like these clog the judicial system and do not serve to protect consumers.

Bills aimed at reforming the Missouri Merchandising Practices Act were proposed in 2016, 2017, and 2018. Senate Bill 276, introduced on January 17, 2019, would set up a “reliance standard,” which means that consumers must prove that the unlawful acts of businesses misled them into purchases, resulting in damages. Consumers who cannot prove causation may find their cases dismissed.

Consumers would also have to show that they acted reasonably during a transaction. A court may dismiss a claim where the claim fails to show a likelihood that the alleged unlawful act would mislead a reasonable consumer. Furthermore, consumers must show individual damages with sufficiently objective evidence to allow the loss to be calculated with a reasonable degree of certainty. The amount of recoverable damage would be determined by the consumer’s “out-of-pocket loss,” which the bill defined as the difference between what the consumer paid and what the market value of the product or service actually is.

The goal of the SB 276 is to prevent frivolous suits and promote a standard that exists in other states Proponents of the bill reason that the MMPA is currently so broad that it has opened the door for “junk lawsuits,” lining the pockets of trial attorneys instead of fulfilling its consumer protection mission.

The Missouri Chamber of Commerce and Industry has backed MMPA reform efforts for several years. Opponents of the bill are concerned that the proposed legislation would strip consumers of their ability to sue fraudulent businesses.

To read more about the rise of slack-fill cases, see:

Bratton v. Hershey Co., 2:16-CV-4322-C-NKL, 2017 WL 2126864 (W.D. Mo. May 16, 2017).

Repairing Missouri’s Broken Consumer Protection Law, Missouri Business Headlines, Missouri Chamber of Commerce and Industry,

Repairing Missouri’s broken consumer protection law

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