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Tootsie Roll’s Junior Mints Box Non-Functional Slack Fill Class Action

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Junior Mints Box

We love our movie candy, but according to this complaint the 3.5 ounce box of Junior Mints violates the Federal Food Drug & Cosmetic Act (FDCA) as well as New York state laws because of the amount of non-functional slack-fill the opaque boxes contain. In fact, the complaint alleges that 43% of the Junior Mints box is empty, compared to only 23% for Milk Duds or Good & Plenty candy.

The Nationwide Class for this action is all persons in the US who made retail purchases of the product during the applicable limitations period. Alternatively, a New York State Class has been proposed with similar terms.

Slack fill is empty space or filler material inside a product container. When the space or filler serves no purpose, it’s non-functional slack fill. Laws have been passed against excessive non-functional slack fill because it fools consumers into thinking they’re getting more of a product than they actually are.

The boxes’ contents have been measured, according to the complaint, with only 3.125 vertical inches of the box containing candy and 2.375 inches containing nothing but air. Images in the complaint use rulers to compare the depth of the Junior Mints box’s empty space with the depth of the empty space in boxes of Good & Plenty and Milk Duds. Since Milk Duds are nearly the same size and shape as Junior Mints, the complaint alleges that this proves that the space is not due to settling alone and that the space is not necessary.

The FDA says that “packaging becomes the ‘final salesman’ between the manufacturer and the consumer, communicating information about the quantity and quality of a product in a container.” And Congress has said that “[p]ackages only partly filled create a false impression as to the quantity of food which they contain despite the declaration of quantity of contents on the label.”

The complaint alleges that the product is “misbranded” under the FDCA because, to quote the law, “its container is so made, formed, or filled as to be misleading.” The law allows slack fill in packages for one of the following purposes:

  • Protection of the contents
  • Requirements of machines for closing the packages
  • Unavoidable settling of contents
  • The need for the package to perform a certain function, such as in preparation of the food
  • The packaging of the food in a reusable container where the container is part of the product and has value
  • Inability to reduce package size because of the need for required information on packaging, to discourage pilfering, or other such purposes.

The complaint alleges that the slack fill in the Junior Mints box does not fulfill any of these functions and is therefore non-functional and misleading. The complaint claims that the company has violated New York’s General Business Law with deceptive and unfair trade practices and false advertising as well as committing common law fraud.

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