SAN FRANCISCO (Legal Newsline) – A class action lawsuit against an Illinois candy company will continue after a U.S. district court judge ruled against a motion to dismiss July 25.

Thomas Iglesias of San Francisco County filed a suit back in February, alleging that Ferrara Candy Co. of Oakbrook Terrace had violated the California Consumers Legal Remedies Act and the state's False Advertising Law. Lawyers for the candy company filed a motion to dismiss, but Judge Vince Chhabria of the U.S. District Court of the Northern District of California denied the motion.

"The complaint adequately alleges that the defendant's candy products contain nonfunctional slack-fill," the judge said in his order.

"The complaint adequately alleges that the packaging is likely to deceive a reasonable consumer."

In his complaint, Iglesias alleges the candy company misrepresented the number of actual candies contained in a box and that he incurred monetary damages from buying the product that allegedly was filled with 41 percent of empty space.

The empty space is considered to be slack-fill.

"Whether empty space is required by the machines used to seal the container, to protect the contents of the package, or to fulfill some specific function required of the packaging, etc., are not 'particularly complicated' questions requiring agency 'expertise' in administration," the judge said in the order.

The Food and Drug Administration defined slack-fill this way.

"A container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill," according to federal regulations.

The Ferrara Candy Co.’s top product is Jujyfruits. Different shapes of the candy include tomato, grape, asparagus, banana, pea and pineapple. 

In the original complaint, Iglesias was looking for monetary damages, court costs and a trial by jury.

Representing the plaintiff are Ryan J. Clarkson, Shireen M. Clarkson and Shalini M. Dogra of the Clarkson Law Firm in Los Angeles.

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