Lawsuit over empty space in Junior Mints boxes dismissed; Judge said persons of 'ordinary intelligence' would not have been tricked

By Gabriel Neves | Nov 7, 2018

NEW YORK (Legal Newsline) – A lawsuit against candy maker Tootsie Roll over alleged misrepresentation regarding the amount of Junior Mints per box and which was previously dismissed by a New York judge has been closed during an appeal.

U.S. District Judge Naomi Buchwald, on the bench of the U.S. District Court for the Southern District of New York, issued a 44-page ruling in the lawsuit filed by Biola Daniel, Abel Duran, and Trekeela Perkins against Tootsie Roll Inc. in August granting Tootsie Roll's motion to dismiss the complaint.

In a stipulation filed on Oct. 11 with the U.S. Court of Appeals for the Second Circuit, the parties agreed that Daniel, Duran and Perkins were withdrawing their right to appeal the decision.

As previously reported by Legal Newsline, Daniel filed a class action against Tootsie Roll on Oct. 3, 2017, claiming that the box of Junior Mints she purchased in September 2016 had 43 percent of empty air inside, or slack-fill. She alleged she was financially damaged because she did not receive what she paid for and that the slack-fill was nonfunctioning.

Buchwald cited laws regarding the use of slack-fill in packages, stating that "the slack-fill in the products did not constitute a 'material misrepresentation,'" and the plaintiffs failed "to plead reasonable reliance."

Buchwald also highlighted that "a person of 'ordinary intelligence' could easily ascertain the amount of candy contained in the product boxes by (1) inspecting the net weight printed on the front, and (2) multiplying the serving size by the number of servings in the box, as provided on the back," the ruling states.

"We can easily conclude, as a matter of law, that the slack-fill enclosed in the products would not mislead a reasonable consumer, as the product boxes provide more than adequate information for a consumer to determine the amount of product contained therein," Buchwald said.

U.S. District Court for the Southern District of New York case number 1:17-cv-07541-NRB

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U.S. Second Circuit Court of Appeals Tootsie Roll Industries U.S. District Court for the Southern District of New York

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