Corey Coyle [CC BY 3.0 (], via Wikimedia Commons

A federal judge in Chicago has dismissed a class action lawsuit accusing Fannie May of deceiving customers into buying larger boxes that contained too little of the candymaker’s popular confectionary creations.

In an opinion issued Feb. 28 in Chicago, Judge Sara L. Ellis sided with Fannie May against plaintiffs Clarisha Benson and Lorenzo Smith, who on May 10, 2017, filed a complaint alleging Fannie May’s practice of bumping up the size of boxes without increasing the amount of candy contained inside deceives consumers and violates the law.

David Chizewer
David Chizewer | Goldberg Kohn

The complaint relied on Fannie May’s use of “slack fill,” an industry term for “the difference between the actual capacity of a container and the volume of product within it.” While some slack fill can be needed to reduce damage to the product during shipping and distribution, the complaint said Fannie May used excessive amounts in several of its products, allegedly designed to fool customers into believing they are getting more candy for their money than the package actually contains.

Smith, the lawsuit said, “paid $9.99 for the Product on the reasonable assumption the box was filled to functional capacity. He would not have paid this sum had he known that the box was nearly 40 percent empty or had the box been proportioned to its actual contents.”

In arguing for dismissal, Fannie May said the plaintiffs failed to allege violations of the Food and Drug Cosmetic Act or the Illinois Consumer Fraud and Deceptive Business Practice Act. Ellis explained a misleading labeling claim under state law must allege an FDCA violation to avoid pre-emption. She also detailed the FDA’s slack-fill regulations and the six exceptions to the rule barring products in opaque packaging — like Fannie May’s candy — from using nonfunctional slack fill.

Among the allowable slack fill exceptions are when it is used to protect contents; if it is required for the machinery that encloses products; if settling during shipping is unavoidable; if the packaging has to perform a specific function in preparing or consuming the food; if the packing is valuable either for reuse or for decorative or commemorative purposes; or if a minimum package size is demonstrably essential.

“There are not many previous cases dealing with the slack-fill regulations, but when faced with similar barebones allegations, courts across the country have found them insufficient to state a violation of the regulations,” Ellis wrote.

She further explained the plaintiffs didn’t offer “concrete allegations to support their claim that defendants’ use of slack fill did not fall into any of the six exceptions.”

Even if they had mounted a plausible allegation, Ellis continued, they still would have lacked the right to pursue injunctive relief because they failed to allege “a threat of future harm that is not conjectural or hypothetical.” In other words, even if Fannie May’s packaging was found to be deceptive, the customers cannot plausibly suggest they would be deceived again in a future purchase.

The initial complaint also suffered because although the plaintiffs bought Mint Meltaways and Pixies, they tried to expand the class allegations to cover people who bought eight other Fannie May products sold in opaque, seven-ounce packages. Although they alleged the slack fill on those products ranges from 38 percent to 59 percent, Ellis noted the other candies all are different shapes and sizes, scuttling the ability to assert a claim for goods the plaintiffs themselves did not purchase.

Ellis agreed to dismiss the complaint in its entirety without prejudice.

The plaintiffs were represented in the action by attorneys James X. Bormes and Kasif Khowaja, each of Chicago.

Fannie May was defended by attorney David J. Chizewer, of the firm of Goldberg Kohn Ltd., of Chicago.

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David J. Chizewer Goldberg Kohn Ltd. Law Office of James X. Bormes, P.C. U.S. District Court for the Northern District of Illinois

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