TRENTON, N.J. (Legal Newsline) – Candy companies are asking a federal judge to throw out a lawsuit that complains there is too much air in packages of Raisinets and other candies in boxes sold in movie theaters.
Nestle and Ferrara Candy Company filed a motion to dismiss Aug. 6 in an effort to cut off claims from nine customers in seven different states. The case is one of many that complain about “slack fill” – the amount of air in a package.
“(T)he label clearly states the amount of candy in the box through several federally mandated objective statements,” the motion says.
“Nevertheless, plaintiffs claim they simply had no idea the candy boxes could have empty space and that the boxes should have been full.”
The motion makes the following arguments:
-The New Jersey federal court doesn’t have jurisdiction over the two non-New Jersey defendants;
-Plaintiffs can’t claim they were unaware of the existence of slack fill in packaged foods and can’t argue a reasonable consumer would rely on the shape and size of a box when guessing how much candy was in it, rather than paying attention to the other size claims made;
-The plaintiffs fail to allege any injury; and
-The lawsuit alleges fraud and is subject to heightened pleading requirements that the plaintiffs didn’t meet, such as when or where they bought the candy.
“None of the plaintiffs come close to alleging the requisite injury or ascertainable loss,” says the motion, written by lawyers at Mayer Brown.
“Plaintiffs’ failure to allege facts supporting injury or an ascertainable loss is no oversight. Plaintiffs are unable to do so because the concession style boxed candy that plaintiffs purchased is the lowest price per ounce pack for these products available in the marketplace (in most stores the products sell for $.99) and there is no allegation (nor could there be) that the Products are more expensive than competitor concession boxed candy.”
Among the other products at issue in the lawsuit are Butterfinger Bites, Buncha Crunch, Sno Caps, Gobstoppers and Nerds.