CHICAGO — Susan Razzano can't say how many similar cases will fill up court dockets in coming years. But the attorney with Eimer Stahl LLP, in Chicago, said she expects class actions over so-called 'slack fill,' such as that recently filed in Chicago federal court against the makers of Junior Mints, will continue to offer trial lawyers a sweet and "easy target."

“I think these kinds of cases are here to stay, and I’m closely following this case for any insights these proceedings may offer going forward in these kinds of matters,” said Razzano, a partner at Eimer Stahl. “Every judge is different and every case depends on what the argued precedent in that area of the law is, but my primary area of law is product liability and consumer fraud, so I definitely will be watching because these kinds of cases (and) decisions could have a bearing on my clients.”

In the case docketed as Stemm v. Tootsie Roll Industriesplaintiff Paige Stemm alleges Tootsie Roll has been misleading consumers about the amount of candy they get in a Junior Mints box.

The suit, which comes on the heels of a similar action brought by a woman in New York against Tootsie Roll, further asserts the boxes sold are only slightly more than half full. It seeks undisclosed damages and a court order directing Toostie Roll to repackage its Junior Mints products.

“Personally, I don’t think manufacturers are decreasing the amount of food in their products,” Razzano said. “The way companies do the packaging seems to stem from a number of different factors. A classic example is potato chips and the amount of air that’s needed in the bag. The [plaintiff's] bar seems to be looking for lawsuits here and sees this area of manufacturing as an easy target.”

According to the American Bar Association, over a seven-year period ending in 2015, the number of lawsuits over excessive slack-fill - an industry term describing empty space required for various reasons inside a packaged product - swelled five times over, from 20 in 2008 to 110 during the last year surveyed.

More recently, the Chicago Tribune reported a similar slack-fill suit was filed against Oakbrook Terrace-based Ferrara Candy Company, the maker of Lemonhead, Jujyfruits, Chuckles and other brands.

Thus far, rulings in such cases have generated mixed results. Just last month, a federal judge in Chicago moved to dismiss a case against chocolatier Fannie May over allegedly excessive packaging space. 

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