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Friday, December 6, 2019

Slack-fill useful, maker of Hot Tamales and Mike and Ikes says in dismissal request

By Sara McCleary | May 25, 2017

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KANSAS CITY, Mo. (Legal Newsline) – Candy manufacturer Just Born Inc. has filed a motion to dismiss a class action complaint filed against the company alleging it has violated Missouri’s Merchandising Practices Act as well as the federal Food, Drug and Cosmetic Act.

Plaintiff Daryl White Jr. filed his complaint against the makers of Hot Tamales and Mike and Ike candies in the U.S. District Court for the Western District of Missouri on Feb. 16, claiming that the empty space, or slack-fill, in the candies’ packaging amounted to misleading and deceptive practices. The company filed its motion to dismiss on April 13.

Just Born points out in its motion that the packaging contains multiple objective statements showing the amount of candy contained in the package, providing the weight in ounces and grams, as well as a serving size in cups and grams paired with the number of servings the box contains.

The plaintiff has not denied that he received the full weight of candy promised by the packaging. Instead, White claims he had been misled because he could not see inside the box, but believed it would be filled to the top. 

However, the motion to dismiss notes that “Under both federal law and Missouri law, slack-fill by itself is not deceptive or impermissible. Only nonfunctional slack-fill is barred under the law.” The plaintiff alleges that the slack-fill in Just Born’s candies does not fill a functional role and serves only to deceive consumers.

In the case of Hot Tamales and Mike and Ike candies, the motion argues that the slack-fill is functional, and therefore permissible, because the boxes have a tab at the top to open the package and conveniently access one candy at a time. Additionally, the high-speed machines used to fill and close the packages need that space to work.

The defendant points to similar cases in its motion to dismiss, including Ebner v. Fresh Inc. in which the U.S. Court of Appeals for the Ninth Circuit “noted that consumers were familiar with the realities of consumer goods packaging, which is often voluminous to catch the consumer’s eye, and that ‘no reasonable consumer expects the weight or overall size of the packaging to reflect directly the quantity of product contained herein.’”

The motion goes on to argue that the plaintiff did not adequately show a loss under the MMPA because the candy packages he purchased contained the amount of candy promised on the packaging. 

Furthermore, argues the motion, it is “not plausible to believe that when he picked up the products from the supermarket shelf that he did not feel the contents shift inside, or that he did not hear a rattling noise produced by hard candy colliding with the interior walls of the cardboard packaging. 

"The tactile and auditory sensations could not have failed to alert White to both the weight of the content as well as the fact that there was slack-fill therein. It is patently unreasonable for a reasonable consumer to single out the size of a packaging while turning a blind eye to everything else about same, and then declare deception.”

White’s complaint also seeks injunctive relief against Just Born to stop the company from “under-filling” its boxes. 

The motion to dismiss, however, argues that injunctive relief is meant to prevent future injury, yet “plaintiff alleges that he and the putative class would not have purchased the products had they known the products contained slack-fill. Now that plaintiff and the class are aware of the slack-fill, there is no danger that they will be misled or deceived by it again in the future.”

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U.S. District Court for the Western District of Missouri