Slack-fill argument ‘coddles’ consumers, court says

It’s a Junior Mint

Who’s gonna turn down a Junior Mint? It’s chocolate, it’s peppermint – it’s delicious!

Three plaintiffs in a recent class action couldn’t: Biola Daniel and Abel Duran of New York and Trekeela Perkins of Mississippi purchased the cool and chocolatey candy in a variety of venues – a Manhattan Duane Reade drug store, an AMC theatre location in a New York suburb and a Walmart store in Mississippi.

But their enthusiasm for the snack waned, the trio alleged in an October 2017 class action, when they discovered that the opaque Junior Mint box concealed nonfunctional slack-fill. The trio banded together to accuse Junior Mint mastermind Tootsie Roll Industries of including up to 43 percent slack-fill in certain boxes, violating the Federal Food, Drug, and Cosmetic Act, the New York General Business Law, and the Mississippi Consumer Protection Act and committing common law fraud.

Cold and Bracing

The Southern District of New York, where the suit was filed, offered a harsh assessment of the action in its Aug. 1, 2018, order to dismiss.

In their suit, the court held, the plaintiffs made two arguments claiming that the information provided on Junior Mints’ packaging was insufficient to prevent misunderstandings about the amount of candy within.

First, the plaintiffs argued, only an “unusually diligent” consumer could figure out how many mints were in each box by multiplying the serving size listed on the label by the number of pieces in each serving.

“We disagree,” the court wrote. “The law simply does not provide the level of coddling plaintiffs seek … the Court declines to enshrine into the law an embarrassing level of mathematical illiteracy. A reasonable consumer is capable of multiplying … 10 by 12 [the amount of mints in the 10.5 oz. box],” and the judge ruled that any consumer “of ordinary intelligence” can figure out how much candy is in a Junior Mints box by reading the label.

The court also threw out the plaintiffs’ second, more subjective, argument in a manner that will be of interest to anyone engaged in product packaging design.

The plaintiffs argued that even if the consumer found the will to multiply out the number of mints in the box, they would be misled about the total amount of candy they were purchasing because the mints pictured on the outside of the box are larger than the actual mints inside. But, the court pointed out, “consumers care about the density or volume of a product only as it relates to the amount or quantity of food.” Since the product packaging disclosed exactly how much food was in the box, the size of the individual pieces in the box was immaterial.

The Takeaway

While slack-fill cases have seen a major uptrend in filings – approximately 300 such cases were filed in 2016 and 2017 – many courts have dismissed these claims in a fashion similar to what we see here. It is becoming increasingly more difficult for plaintiffs to get past the pleading stage on such cases.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.