Maker of “Now and Later” agrees to pay out $2.5 million

Reminiscing 

Most of us are generally familiar with the candies that children enjoy at the movie theater, including Lemonheads, Now and Later, Jujyfruits and other sweet treats. You may remember excitedly devouring these candies as the previews started to roll, and probably the last thing on your mind was exactly how much candy was in that box. However, these candies are now garnering the attention of adults due to slack-fill claims.

Sweet Crusade

Thomas Iglesias filed a class action complaint in February 2017 against Ferrara Candy, the maker of the Jujyfruits candy (and other well-known brands like Jawbreakers), alleging that the box of Jujyfruits he had purchased was half-slack filled with space that served “no functional or lawful purpose.” The complaint was filed in the United States District Court for the Northern District of California and alleged various violations of the California Consumers Legal Remedies Act, the California False Advertising Law and the California Unfair Competition Law. Iglesias alleged that his investigation into the slack-filled Jujyfruits boxes revealed a pattern of having the boxes conventionally secured behind thick glass at the movie theater concession stands, which prevented purchasers from examining the boxes to determine the contents prior to purchase. Additionally, Iglesias alleged that because the boxes were opaque, consumers were further prevented from determining the volume of candy inside the package.

The Takeaway

In mid-May 2018, the parties filed a motion for preliminary approval of a class action settlement, with Ferrara agreeing to pay $2.5 million into a class action pool that would award $.50 per purchase to class members who purchased any one of a variety of Ferrara’s products sold in opaque boxes between Feb. 21, 2013, and the date of preliminary approval. Ferrara also agreed to adjust its packaging fill practices, pay administrative costs incurred by the class action pool, provide Iglesias a $5,000 incentive award and pay for a portion of his attorney’s fees. This settlement is an important demonstration of how consumers are continuing to bring slack-fill claims against popular food and beverage companies. As this trend continues, it will be interesting to see how companies avoid slack-fill claims while still providing a marketable and cost-efficient product.