This week, Mondelez Global moved to dismiss a putative class action led by a consumer who allegedly bought an under-filled container of Sour Patch Kids candy from a movie theater in Manhattan. The complaint alleges that the candy’s labeling is misleading, as consumers purchased far less candy than they believed due to large amounts of empty space in the packaging known as “slack-fill”:

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Mondelez, on the other hand, contends that the complaint exaggerates the amount of slack-fill by arranging the candies to exceed the height of the box:

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According to Mondelez, the amount of candy in the package was clearly displayed on the outside of the box – so that any reasonable consumer would know exactly how much candy they were purchasing. Mondelez further argued that Judge McMahon could and should rely on common sense to determine that slack-fill space in the candy boxes was permissible:

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oreover, common sense dictates that the empty space in the Sour Patch Kids box does in fact serve one or more of the functionalities articulated by the FDA. The thin cardboard box naturally serves a “specific function” by allowing the product to stand upright in a display case and ensure visibility to theater-goers. The empty space is also logically necessary given the sticky nature of the sugary candies, which require space to avoid sticking together. Further, the space is understandably necessary to accommodate both the “settling” of the candy during production and transit, and the machinery used to seal the bag and the box. Courts regularly apply common sense to dispose of claims at the pleading stage.

The case is currently pending before Judge McMahon.