Monday, March 25, 2019

How much candy does a consumer expect to find in the box?

Daniel v Tootsie Roll Industries
Southern District of New York

This is one of several lawsuits alleging that the size of the packaging of Junior Mints is misleading to consumers when compared with the amount of candy inside the box.

These are Junior Mints
This is NOT Junior Mints, but they come in a box like this

“Slack fill” is defined by the Food and Drug Administration as “the difference between the actual capacity of a container and the volume of product contained therein.”  Food manufacturers often use slack fill to protect delicate products, such as potato chips or cookies, from crumbling or breaking in the packaging.

A box of Junior Mints contains candy pieces and air.  The lawsuit alleges the box contains "nearly as much air as candy."

In a 44-page decision issued on August 1, 2018, Judge Naomi Reice Buchwald in Manhattan found no fraud, saying “reasonable” consumers could have determined the weight and the number of candies from the information printed on the packaging, and would expect some empty space.

“The law simply does not provide the level of coddling plaintiffs seek,” Buchwald wrote.

“Assuming that a reasonable consumer might ignore the evidence plainly before him attributes to consumers a level of stupidity that the court cannot countenance,” she added.

Beasley v. Tootsie Roll Industries
Northern District of California

This is a new lawsuit against Tootsie Roll Industries, filed December 26, 2018, alleging that Tootsie Rolls and Tootsie Pops failed to disclose on their packaging that they were manufactured with partially hydrogenated oil between January 1, 2010 and December 31, 2016.

Tootsie Roll
Tootsie Pops

The lawsuit alleges that despite the amount of scientific evidence available, Tootsie Industries continued to use partially hydrogenated oil, a byproduct of the manufacture of trans-fat, in their Tootsie Roll and Tootsie Pop products.  The FDA in 2015 “formally declared PHO to be unsafe for use in food,” the suit adds.