A district court in Illinois recently dismissed putative class action claims against Fannie May Confections Brands, Inc. based on allegations that certain boxes of their sugary treats contained fewer candies than expected. Benson v. Fannie May Confections Brands, Inc., No. 17 C 3519, 2018 WL 1087639, at *1 (N.D. Ill. Feb. 28, 2018).

The facts of the case are short and sweet. Plaintiffs purchased two boxes of candy, Mint Meltaways and Pixies, from Fannie May for approximately $10 each. Upon opening the boxes, Plaintiffs discovered that they were occupied by between 33% and 40% of empty space, or “slack fill.” Id. Plaintiffs brought a putative class action on behalf of purchasers of the candies they purchased, as well as eight varieties of Fannie May candies that they did not purchase, all of which were sold in similar 7-ounce boxes that included over 33% slack fill. Id. Plaintiffs asserted claims for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), seeking injunctive relief and damages, and Illinois common-law claims for unjust enrichment and breach of implied contract. Id. Fannie May moved to dismiss, arguing that Plaintiffs did not adequately plead the elements of their ICFA claim, lacked standing to bring claims on behalf of purchasers of products Plaintiffs did not purchase, and lacked standing to seek injunctive relief. The court granted the motion without prejudice. Id.

The court first examined the issue of preemption under the Food, Drug and Cosmetic Act (FDCA). Id. at *3. The FDCA expressly preempts state law claims that impose labeling requirements “not identical” to its own requirements. 21 U.S.C. § 343-1. Therefore, a plaintiff bringing a claim for misleading labeling under state law must allege a violation of the FDCA to avoid preemption. “Slack fill” is defined by regulation as “the difference between the actual capacity of a container and the volume of product contained therein.” 21 C.F.R. § 100.100(a). Although slack-fill can be functional or nonfunctional, packaging that does not permit a consumer to view its contents may not have non-functional slack-fill. Plaintiffs argued that the products at issue violated the FDA’s slack-fill regulations because the boxes were opaque, contained more than 33% slack-fill, and that slack-fill was in excess of the amount necessary to achieve the six “functional” purposes enumerated in the regulations. Id. at *4. Examples of these exceptions include empty space that protects the contents of the package, or where a product consists of a food packaged in a reusable container where the container is part of the presentation of the food and has significant independent value. Id. at *3-4. The court rejected Plaintiffs’ allegations as too “barebones” to plausibly state a claim that the slack-fill in the Fannie May boxes was nonfunctional in violation of § 100.100(a) under either Rule 8 or the heightened pleading standard of Rule 9(b) (since Plaintiffs’ allegations were premised on the packaging being misleading to consumers). Id. at *4. The court held that because the Plaintiffs failed to adequately allege a violation of the federal regulations, they failed to state a non-preempted claim under Illinois law. Id. at *5.

Although not required to reach the issue of injunctive relief, the court also held that even if Plaintiffs had alleged a colorable ICFA claim, they lacked standing to seek prospective injunctive relief against Fannie May because they could not claim they would be deceived again in the future: “Most courts to address similar circumstances have held that absent some concrete basis to conclude that the plaintiffs will or must purchase the product again in the future and be deceived, they cannot meet the standing requirements for injunctive relief claims.” Id.

Finally, regarding Plaintiffs’ proposed claims on behalf of a putative class of individuals who purchased eight other Fannie May products that Plaintiffs did not purchase, the court noted a split in authority as to whether a plaintiff has standing to assert class claims based on products he or she did not purchase if the products and alleged misrepresentations are substantially similar. Ultimately, the court held that even if it were to adopt the “substantially similar” standard, the Plaintiffs failed to show that the non-purchased products in this case (which varied in size, ingredients, and in some instances, packaging) were substantially similar to the products they did purchase based solely on allegations that they were all “chocolate and confection products” whose boxes contained non-functional slack-fill. Id. at *6. Plaintiffs’ claims based on the non-purchased products were therefore also dismissed. Id.

While “slack-fill” allegations might seem a relatively simple avenue for plaintiffs to assert consumer fraud-based claims, this case makes clear that such claims will be dismissed in the absence of specific allegations describing the basis for an alleged regulatory violation. As the opinion notes, few cases have addressed the slack-fill regulations. However, those that have in jurisdictions throughout the country have found barebones allegations similar to those asserted by the Plaintiffs in this case to be insufficient to state a claim. Defendants that find themselves as targets of “slack-fill” claims should therefore not only be well versed in the regulations, but also vigilant in seeking dismissal where, for instance, a plaintiff alleges broadly that the use of slack-fill does not fall into any of the six enumerated functionality exceptions without pleading concrete allegations to support such a claim.