Cook County Record

Thursday, April 2, 2020

Judge boxes up class action vs Fannie May over amount of candy in its packages


By Scott Holland | Dec 13, 2018

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Corey Coyle [CC BY 3.0 (]

A federal judge in Chicago sided with Fannie May and has bagged a class action complaint accusing the chocolatier of under filling its candy packages.

In May 2017, Clarisha Benson and Lorenzo Smith filed their complaint, saying Fannie May’s practice of bumping up the size of the boxes without increasing the amount of candy contained inside deceives consumers and violates the law. After Judge Sara Ellis dismissed their initial complaint, the plaintiffs filed an amended complaint, which Ellis dismissed with prejudice in an order issued Dec. 10.

As in the initial complaint, Benson and Smith alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as common-law claims for unjust enrichment and breach of implied contract.

The lawsuit centers on Fannie May’s use of “slack fill,” or “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 product damage during distribution, the complaint claims the amount Fannie May uses in several products is excessive, intended to fool customers into believing they’re getting more candy for their money than the package actually contains.

The lawsuit, for instance, says Fannie May’s 7 oz. package of Hot Fudge Truffles is 48 percent slack; its Pixies package contain 38 percent slack; and Mint Meltaways contain 33 percent slack.

“The packaging of the Products is uniformly made out of nontransparent cardboard so that consumers cannot see the slack-fill therein, thus giving Plaintiffs and the Class the false impression that there is more food inside than is actually there,” the lawsuit said.

In arguing for dismissal, Fannie May said the plaintiffs failed to allege a violation of the Food Drug and Cosmetic Act, which also would ensure a pre-emptive dismissal of state-law claims. Ellis said the FDCA doesn’t provide a private right of action, but it does expressly pre-empt state-law claims imposing labeling requirements not identical to its own.

Nonfunctional slack fill in containers that bar customers from seeing package contents is impermissible, Ellis explained, but she said the first dismissal was appropriate because allegations of nonfunctional slack filled “were simply a barebones statement.” The amended complaint incorporates only “a bare recitation” of the relevant law “and a comparison to the slack-fill in the 14-ounce version of the Mint Meltaways.” According to Ellis, the plaintiffs said the 7-ounce box’s slack fill is nonfunctional because slack fill in the 14-ounce box is less than double the volume.

“In its guidance interpreting the slack-fill statute,” Ellis wrote, “the FDA cautions against concluding slack-fill is nonfunctional based on comparisons to other identical products, let alone similar products packaged differently. … The fact that a different container is filled to a different level is not only unsurprising, it is what one would expect.”

Further, Ellis explained, the complaint makes no allegations about how Fannie May fills any of its boxes to support the argument volumes should be proportionally consistent. She said the plaintiffs’ case could be valid if they’d referenced an identical box with a larger volume of the same product, but she wouldn’t accept their conclusory logic.

Ellis agreed the complaint failed to allege violations of federal regulations, which directly negated the state-law claims. She dismissed the entire complaint with prejudice, meaning plaintiffs are not allowed to file their lawsuit again.

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

Fannie May has been represented by attorney David J. Chizewer, of the firm of Goldberg Kohn Ltd., of Chicago.

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Organizations in this Story

Fannie May Confections Brands, Inc.U.S. District Court for the Northern District of IllinoisLaw Offices of James X. BormesGoldberg KohnThe Khowaja Law Firm, LLC