Over the past several years, federal courts have rarely allowed slack-fill class actions to survive beyond the motion to dismiss phase. Whether the plaintiffs allege that the packaging is misleading or that the slack-fill is “non-functional,” courts across the country routinely reject class actions premised on theories that are increasingly being viewed as antithetical to basic common sense and consumer experience.1

Most recently, in October 2021, Judge Anne Thompson of the District of New Jersey dismissed Iglesia v. Tootsie Roll Indus., a putative class action alleging various fraud, breach of warranty, and misrepresentation claims against Tootsie Roll Industries.2 The plaintiff asserted that Tootsie Roll Industries packaged their Junior Mints and Sugar Babies products in a manner that contained “an unlawful amount of empty space, or ‘slack-fill.’”3

Specifically, the putative class representative maintained that he did not get what he paid for when he purchased a box of Junior Mints and “understood the size of the box and product label to indicate the amount of candy contained therein was commensurate with the size of the box[.]”4 He further claimed that he—and the putative class of Junior Mints and Sugar Babies purchasers he sought to represent—would not have purchased the box of candy had they been aware that the box contained slack-fill that had no lawful purpose or function.5

The court dismissed Plaintiff’s fraud claims, finding the allegations about the Products’ packaging and labeling did not “‘victimize the average consumer’” because “the Products contain a disclosure that the Products are sold by weight, and not volume, which addresses the very information that Plaintiff alleges was misrepresented.”6 The court cited a 2018 Southern District of New York case holding that a reasonable consumer would not be misled by the slack-fill in a box of Junior Mints because “a consumer ‘can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.’”7 The court also found that the plaintiff failed to prove that the candy he received was worth less than he paid for it.8

Finally, the court dismissed Plaintiff’s unjust enrichment claim with prejudice. The court found that since the plaintiff bought his candy from an Albertson’s and not directly from Tootsie Roll, he could not “rightfully expect any remuneration from defendant” when he “never directly conferred a benefit on defendant.”9 The court granted the plaintiff a thirty-day leave to amend the complaint as to the fraud claims, but the plaintiff elected to voluntarily dismiss the case without prejudice instead.10

Iglesia marks the latest in a growing trend of unsuccessful slack-fill class action litigations.11 The Bilzin Sumberg team will continue to provide updates on slack-fill litigation trends as they develop.