A federal court has denied a motion to dismiss a slack-fill complaint against Just Born, maker of Mike and Ike and Hot Tamales® candies. White v. Just Born, No. 17-4025 (W.D. Mo., order entered July 21, 2017). The complaint alleged that consumers are likely to choose opaque, “theater-sized” boxes of the candies believing they are a good value despite allegedly containing up to 35 percent empty space. 

The court found that the plaintiff had pleaded sufficient facts to establish a claim under the Missouri Merchandising Practices Act, finding “a reasonable consumer could conclude that the size of a box suggests the amount of candy in it. . . . [t]he Court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading.” Moreover, Just Born’s argument that the packages’ labeling and disclosures of net weight, number of pieces of candy per serving and servings per box are fatal to the plaintiff’s claim “overlooks that the Court must consider the plausibility of the complaint as a whole, not the plausibility of each individual allegation.” 

Another Mike and Ike® slack-fill lawsuit is pending in California federal court. Additional details about that case appear in Issue 628 of this Update.