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‘Your honor, cut us some slack!’

Candy Industry, August 2, 2017

By: Alyse Thompson 

Appearances matter.

As clichė as it is, that adage applies to just about everything, whether it’s the first impression job candidates make at interviews or how dates come off to one another at their first meeting.

That idea came to mind when I learned two U.S. District Court judges had last week denied motions by Just Born, Inc. and Ferrara Candy Co. to dismiss separate theater-box slack-fill lawsuits brought against the candy companies this year.

In February, Missouri resident Daryl White, Jr., filed a class-action suit, with help from the KamberLaw and Steelman, Gaunt & Horsefield law firms, against Bethlehem, Pa.-based Just Born after purchasing 5-oz. theater boxes of Hot Tamales and Mike and Ikes at a Dollar Store in Jefferson City, Mo. White alleged the boxes were misleading, since they were about two-thirds full of candy and had about 34 percent slack fill.

That same month, California resident Thomas Iglesias filed, with help from the Clarkson Law Firm, a class-action complaint against Oakbrook Terrace, Ill.-based Ferrara Candy Co. also alleging a 5-oz. theater box of Jujyfruits was deceptive, since it was about 60 percent full and had about 40 percent slack fill.

Judges in both cases found the plaintiffs presented enough evidence at the pleading stage to move the suits forward. Additional hearings have not been set in either case.

Food and beverage class-action suits are something we hear about more and more. In fact, Editor-in-Chief Bernard Pacyniak broached the topic of slack-fill litigation in March when NBC’s “Today” show aired a segment on the subject, which, of course, included opening theater boxes and showing the white space inside.

As manufacturers know, there are reasons why slack fill is incorporated into packaging. Matt Pye, Just Born’s v.p. of corporate affairs, discussed them with Candy Industry in March, noting over the last five to 10 years, manufacturers have downsized box weights and sizes.

“Functional head space is necessary for a variety of reasons, including for high-speed packaging purposes,” he said. “While our packaging specifications are proprietary, the functional headspace that allows for high speed filling of our packages and settling is no different than many other candy and food packages.”

The U.S. Food and Drug Administration also recognizes the circumstances surrounding slack fill, regulating against nonfunctional slack fill in opaque containers but allowing it a handful of cases, including protection of the package’s content, unavoidable product settling and, as Pye mentioned, machine requirements.

Nonetheless, slack fill isn’t appealing to the average consumer at first glance. When they open the box, it looks like they’re being short-changed, even though the product weight is reflected on the front of the package. But again, appearances matter.

The image of the partially empty box, along with nationally-applicable federal regulations, makes slack fill a prime target for class-action suits that benefit the district attorneys and law firms who file them. As for the consumers involved in the complaint? Not so much, said Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform (IRL).

“In these kinds of cases, lawyers make millions while only a very small percentage of consumers will see any money,” she told the Chicago City Wire in March.

According to a report the IRL released earlier this year, slack fill is only one of several concepts targeted in class-action suits. Others include “natural” and “healthy” — terms the FDA has struggled to define and whose vagueness is perfect for legal challenges.

The report also noted more than 170 new food class actions were filed in or removed to federal court in 2016, up from about 120 in 2015. There were 425 active cases in federal courts in 2015 and 2016.

And some of the most popular places to file these suits? California, New York, Florida, Illinois, New Jersey, Pennsylvania and Missouri. Two of those should sound familiar.

While it’s important to have consumer protections in place — even when it comes to nonfunctional slack fill — they shouldn’t be exploited by law firms seeking financial gain. However, the tide of class-action suits is unlikely to ebb, so the best defenses are educating consumers and innovating in packaging. Of course, that’s easier said than done.

In the meantime, manufacturers should be cut some slack.