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Courts Continue to Let the Air Out of Slack-Fill Litigation: Another Class Action Dismissed

Lori Lustrin, Ilana Drescher & Alexa I. Tirse

Blog ImageOver the past several years, federal courts have rarely allowed slack-fill class actions to survive beyond the motion to dismiss phase. Whether the plaintiffs allege that the packaging is misleading or that the slack-fill is “non-functional,” courts across the country routinely reject class actions premised on theories that are increasingly being viewed as antithetical to basic common sense and consumer experience.1

Most recently, in October 2021, Judge Anne Thompson of the District of New Jersey dismissed Iglesia v. Tootsie Roll Indus., a putative class action alleging various fraud, breach of warranty, and misrepresentation claims against Tootsie Roll Industries.2 The plaintiff asserted that Tootsie Roll Industries packaged their Junior Mints and Sugar Babies products in a manner that contained “an unlawful amount of empty space, or ‘slack-fill.’”

Specifically, the putative class representative maintained that he did not get what he paid for when he purchased a box of Junior Mints and “understood the size of the box and product label to indicate the amount of candy contained therein was commensurate with the size of the box[.]”4 He further claimed that he—and the putative class of Junior Mints and Sugar Babies purchasers he sought to represent—would not have purchased the box of candy had they been aware that the box contained slack-fill that had no lawful purpose or function.

The court dismissed Plaintiff’s fraud claims, finding the allegations about the Products’ packaging and labeling did not “‘victimize the average consumer’” because “the Products contain a disclosure that the Products are sold by weight, and not volume, which addresses the very information that Plaintiff alleges was misrepresented.”6 The court cited a 2018 Southern District of New York case holding that a reasonable consumer would not be misled by the slack-fill in a box of Junior Mints because “a consumer ‘can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.’”7 The court also found that the plaintiff failed to prove that the candy he received was worth less than he paid for it.8

Finally, the court dismissed Plaintiff’s unjust enrichment claim with prejudice. The court found that since the plaintiff bought his candy from an Albertson’s and not directly from Tootsie Roll, he could not “rightfully expect any remuneration from defendant” when he “never directly conferred a benefit on defendant.”9 The court granted the plaintiff a thirty-day leave to amend the complaint as to the fraud claims, but the plaintiff elected to voluntarily dismiss the case without prejudice instead.10 

Iglesia marks the latest in a growing trend of unsuccessful slack-fill class action litigations.11 The Bilzin Sumberg team will continue to provide updates on slack-fill litigation trends as they develop. 

[1] See Critcher v. L’Oreal, 959 F.3d 31 (2d Cir. 2020) (affirming motion to dismiss where class alleges that the net weight labels on certain L’Oreal products were misleading); see also Buso v. ACH Food Cos., Inc., 445 F. Supp.3d 1033 (S.D. Cal. 2020) (dismissing class action with prejudice where consumers claim that they were misled by “non-functional” slack-fill in boxes of cornbread mix). [2] Iglesia v. Tootsie Roll Indus., LLC., No. 3:20-cv-18751, ECF No. 23 (Order) (D.N.J. Oct. 18, 2021).
[3] Iglesia v. Tootsie Roll Indus., LLC., No. 3:20-cv-18751, ECF No. 13 (Amended Complaint) at ¶ 3.
[4] Id at ¶ 6.
[5] Id.
[6] Id at 12.
[7] Id. at 13.
[8] Id at 14-5; The court dismissed the claims related to Sugar Babies for lack of standing because the named plaintiff did not allege that he had purchased Sugar Babies. Order at 6. The court also rejected the plaintiff’s claim of breach of express warranty, stating that “[a]n express warranty based on the size of the box alone is, in essence, an implied express warranty, which the law does not permit.”
[9] Order at 18.
[10] Id at 21; Iglesia v. Tootsie Roll Indus., LLC., No. 3:20-cv-18751, ECF No. 25 (Notice of Voluntary Dismissal).
[11] See Jackson v. General Mills, Inc., 2020 WL 5106652 *5 (S.D. Cal. Aug. 28, 2020) (finding that the plaintiff’s Second Amended Complaint also fails to support “the conclusion that the slack-fill in the box of cereal she bought was non-functional slack-fill as defined by statute.”); see also Buso v. ACH Food Cos., Inc., 445 F. Supp.3d 1033 (S.D. Cal. 2020) (dismissing class action with prejudice, claiming that a reasonable consumer would not be deceived by the packaging that discloses the products net weight, number of servings, and the “rough estimate” of cornbread that could be made from the box); see also Berni v. Barilla S.P.A., 964 F.3d 141, 143 (2d Cir. 2020) (overturning a class settlement granting injunctive relief to past purchasers of Barilla pasta explaining,“[n]o matter how ubiquitous Barilla pasta may be, there is no reason to believe that all, or even most, of the class members—having suffered the harm alleged—will choose to buy it in the future.”). 



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