Legal Watch

Just Born and Ferrara Candy slack-fill cases to proceed

By Oliver Nieburg

- Last updated on GMT

Just Born's Mike & Ike and Hot Tamales and Ferrara Candy's Jujyfruits to face slack-fill lawsuits. Photo: Court papers
Just Born's Mike & Ike and Hot Tamales and Ferrara Candy's Jujyfruits to face slack-fill lawsuits. Photo: Court papers

Related tags Ferrara candy Class action Plaintiff

Judges have rejected motions to dismiss two separate cases accusing candy makers Just Born and Ferrara Candy of deceiving consumers by under-filling packaged products.  

A Missouri judge on July 21 refused to grant a motion to dismiss a lawsuit accusing candy company Just Born of slack-filling Mike & Ike and Hot Tamales boxes.

In a separate case, a judge in California on July 25 rejected a motion to dismiss a class action suit claiming Ferrara Candy had misrepresented the amount of candy in Jujyfruits boxes.

Mike & Ike and Hot Tamales

The Just Born class action suit was lodged in February this year by private citizen Daryl White Jr..

White alleges he was deceived by opaque cardboard containers of Mike & Ike and Hot Tamales candies, which he purchased for a $1 each at a Dollar Store in Missouri.

The Hot Tamales and Mike & Ike boxes both stated a net weight of 141 g on the front of the boxes, which were 3.25” x .75″ x 6″.

The claimant alleges each box had about 35% slack-fill, or empty space.

mike and ike_hot tamales court joint
Claimant alleges Mike & Ike and Hot Tamales packs contained 35% of empty space. Photo: Court papers

Just Born argues reasonable consumer is not deceived

Candy maker Just Born moved to dismiss the lawsuit. It argued a reasonable consumer would not be deceived by the packaging and said slack-fill is not impermissible under federal or state law.

It also alleged White lacked standing to pursue damages and claimed White failed to state an ascertainable injury.

Motion to dismiss rejected

However, US district judge Nanette K. Laughrey rejected the motion to dismiss on July 21, 2017.

She said White was potentially entitled to damages and said his claim was plausible under the Missouri Merchandising Practices Act (MMPA).

The judge said White may be able to show loss under the legislation by not obtaining what he bargained for. The case will proceed.

Just Born declined to comment on pending litigation when contacted by ConfectioneryNews. White’s lawyers at legal firm Steelman, Gaunt & Horsefield have not responded to our request for comment.

The company faces a similar class action suit in California​ brought by private citizen Stephanie Escobar. Just Born’s motion to dismiss the separate suit was rejected in June this year.

jujyfruits court case
Ferrara Candy's Jujyfruits packs alleged to contain 41% empty space. Photo: Court papers

Ferrara Candy’s Jujyfruits case

San Franciscan resident Thomas Iglesias brought a separate class action​ case against Ferrara Candy in the northern district of California district court on February 21, 2017.

He alleged he was deceived by opaque boxes of Jujyfruits (142 g) containing 59% candy and 41% empty space

US district judge Vince Chhabria rejected Ferrara Candy’s motion to dismiss the case on July 25. The judge pointed out existing Food & Drug Administration (FDA) regulations define "nonfunctional slack-fill."

The case will proceed.

ConfectioneryNews has contacted Ferrara Candy’s lawyers for comment.

Ryan J. Clarkson, of Clarkson Law Firm, a lawyer for the Iglesias (and also the lawfirm representing Escobar against Just Born), said his client was pleased the case would proceed.

“This appears to be an industry-wide issue and boxed candy manufacturers would be well advised to evaluate the possible existence of nonfunctional slack-fill in their products and take remedial measures to prevent consumer deception in the marketplace.

“The solution is easy: fill the box, shrink the box, or make the box transparent," ​he said.

Slackfill lawsuits

  • lawsuit - eccolo74
    In October last year, a New York judge dismissed a class action lawsuit​ accusing Mondelēz International of deceiving consumers by allegedly slack-filling Sour Patch Kids candy boxes.
  • In September 2015, another judge in New York dismissed a lawsuit​ accusing Perfetti Van Melle USA of slack-filling Mentos chewing gum containers.

Daryl White, Jr v. Just Born, Inc
Case no.: 2:17-cv-04025-C-NKL
United States District Court for the Western District Of Missouri Central Division
July 21, 2017

Thomas Iglesias V Ferrara Candy Co
Case No. 17-cv-00849-VC
United States District Court Northern District of California
July 25, 2017

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