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Wednesday, April 8, 2020

Judge says reasonable consumer could be fooled by slack fill in Hot Tamales, Mike and Ike's

By Elizabeth Alt | Sep 28, 2017

General court 09

JEFFERSON CITY, Mo. (Legal Newsline) – Candy company Just Born Inc.’s attempt to dismiss a lawsuit over slack-fill techniques was denied by the U.S. District Court for the Western District of Missouri, Central Division on July 21.

A Missouri consumer sued Just Born on Feb. 16 for allegedly using slack fill to make the boxes of Hot Tamales and Mike and Ike’s candies appear fuller. 

Just Born filed a motion to dismiss on April 13, arguing that slack fill is not itself a violation of federal law, and a reasonable customer would realize the contents of the box of candy from the clear wording on the ingredient label despite the size and the opaque packaging. 

Judge Nanette K. Laughrey stated in the ruling that “a reasonable consumer would expect the candy boxes’ labeling information to comport with the dimensions of the box and it is Just Born that is in the superior position to know whether the dimensions do,” drawing attention to a recent case in the Missouri Court of Appeals that rejected the same ingredient-label defense at the motion to dismiss stage.

Laughrey referenced the case of Murphy v. Stonewall Kitchen LLC that determined that a reasonable customer would believe that the ingredient list would match the advertising wording on the packaging and that the manufacturer should be responsible for those being consistent. 

Laughrey said that plaintiff, Missouri resident Daryl White Jr., may be entitled to injunctive relief, and has stated a reasonable claim under the Missouri Marketplace Protection Act (MMPA).  

White purchased boxes of both candies at a dollar store in Missouri and filed a claim on Feb. 16 on behalf of himself and other customers who purchased boxes of Mike and Ike and Hot Tamales candies. White said he was misled because the packaging was deceiving, that the larger and opaque boxes containing the candy led him to believe the boxes held more candy, the opinion states.

White showed pictures that illustrated how each box had around 35 percent of empty space, or slack fill, which he claims has no functional use. White contends that consumers spend an average of 13 seconds making a purchase decision in a store, placing importance on packaging, and are more likely to buy a product packaged in a bigger box as they believe it is a better value, the opinion states.

Just Born argued that the “express disclosures” on the packages ingredient labels should negate White’s claim because they tell a consumer how much candy is in the box. 

Laughrey countered that “Just Born’s narrow focus and emphasis on the net weight, number of pieces of candy per serving, and servings per box, as printed on the boxes… does not serve the purpose of the MMPA”, explaining that the MMPA was purposely written broadly to protect consumers against any unfair or deceptive practices, and that even clear ingredient labels cannot counteract the impression created by the packaging, which be inherently deceptive.   

Both parties cited multiple cases nationwide of a similar nature, but Laughrey pointed out that the Missouri Supreme Court has given each court the responsibility to decide whether a case violates the MMPA’s consumer protection laws on a case by case basis.

Laughrey referenced the 2016 case of Chester v. TJX Cos. Inc. quoting, “It is inconceivable to think prospective relief in the false advertising context is bound by the rules of ‘fool me once, shame on you; fool me twice shame on me.’ The court...refuses to find that, once a plaintiff has alleged that she was deceived, she likely will not voluntarily be deceived again.”

White is represented by attorneys with Steelman, Gaunt, and Horsefield of Rolla, Missouri.

U.S. District Court for the Western District of Missouri, Central Division case number 2:17-cv-04025-C-NK

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Missouri Supreme CourtU.S. District Court for the Western District of Missouri