On October 18, 2021 a New Jersey federal judge dismissed plaintiff Regan Iglesia’s proposed class-action lawsuit against Tootsie Roll Industries (“Tootsie Roll”). The case was dismissed for lack of standing, due to a failure to show actual harm. Plaintiff Iglesia alleged that Tootsie Roll dramatically underfilled its boxes of Junior Mints and Sugar Babies. He alleged that the company “packages, markets, and advertises Junior Mints and Sugar Babies in a misleading manner by representing them as adequately filled, when in fact they contain ‘an unlawful amount of empty space, or slack-fill.’” However, judge Anne E. Thompson concluded that plaintiff Iglesia could not prove that the candy he received was “worth less than [he] paid.” The case was dismissed without prejudice, so the plaintiff may file an amended claim.

This is not the first time that Tootsie Roll has been faced with a class action challenge.  In a 2019 case, the Company faced a slack-fill challenge regarding its Junior Mint candy, but that case was also dismissed due to the plaintiff’s inability to show actual harm. The judge concluded that the plaintiff failed to show that the candy she received was worth less than what she paid. Many companies have faced slack-fill challenges in recent years, including manufacturers of chips, pasta, and other candy products.

As we have previously blogged, these challenges involve alleged differences between the actual capacity of a container and the volume of product it contains. Federal law permits slack-fill in certain circumstances, such as packaging equipment limitations and protection of the integrity of the product, but prohibits nonfunctional slack-fill.  There are also state-specific unfair business practice laws that are applicable to claims of slack-fill.