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Several consumers are accusing Nestlé and its parent company, Ferrara, of slacking off when filling their theater candy boxes.
Nine plaintiffs — Regan Iglesia, Larry Fertel, Nosson Chaim Rosenberg, Soraya Yd, Suzanne Tatkow, Jaime Maxwell, Lauren Debeliso, Maeredith Barter and Patrick Ferguson — are claiming “false, deceptive, unfair, unlawful, and fraudulent advertising and labeling” of “the most popular theater candy box products in the world”: Raisinets, Butterfinger Bites, Gobstopper, Toll House chips, Nerds, Buncha Crunch, Runts, Sno Caps, Spree and SweeTarts.
The Nestlé candy is sold in deceptively large opaque boxes “to increase profits at the expense of consumers and fair competition,” the plaintiffs allege.
The Nestlé class action lawsuit contains numerous photos illustrating the amount of candy contained in random boxes of the candies in question. Each one shows roughly one-third to one-half less than a full box.
“Defendants market the Products in a systematically misleading manner by representing them as adequately filled when, in fact, they contain an unlawful amount of empty space or ‘slack-fill,’” the Nestlé candy class action lawsuit states.
“Defendants’ slack-fill scheme not only harms consumers, but it also harms their competitors who have implemented labeling changes designed to alert consumers to the true amount of product in each box.”
The named plaintiffs, who reside in seven different states, each purchased one or more of the Nestlé candy products targeted in this lawsuit, believing the box size and product label indicated the amount of candy within. But they claim all fell far short of that expectation.
“Plaintiffs would not have purchased the Products had they known that the Products contained slack-fill that serves no functional or lawful purpose.”
The class action notes that several of Nestlé’s major competitors in this market have faced similar lawsuits and revised their packaging and labeling practices accordingly.
Among them are Just Born, the maker of Hot Tamales and Mike & Ike’s candies; and Tootsie Roll, which makes Junior Mints and Sugar Babies.
Even co-defendant Ferrara Candy has made labeling changes to many of its products that don’t fall under the Nestlé candy brand, such as Boston Baked Beans and Jujubes, according to the candy class action lawsuit.
“While other similar lawsuits against Defendants’ competitors have all but curbed this unfair business practice, Defendants remain the last hold-out, ignoring this industry trend towards transparency in the hopes of obtaining an unfair competitive advantage in the marketplace,” the Ferrara candy class action lawsuit maintains.
“This class action aims to remedy Defendants’ unfair business practice by forcing them to follow the industry trend toward greater transparency and eliminating consumer deception.”
A survey conducted by two economics experts retained by plaintiffs’ counsel “confirmed that nearly 90% of candy consumers overestimate the amount of candy contained in [the Nestlé candy] products. This is true even for repeat purchasers.”
The lawsuit also argues that consumers have no way of determining the contents of the products’ opaque boxes. Even if they shook the box, “the reasonable consumer would not be able to discern the presence of any nonfunctional slack fill, let alone the one-third to one-half nonfunctional slack-fill that is present.”
In addition, the candy class action lawsuit maintains that the “quantity” information that is printed on the box fronts “does not enable reasonable consumers to form any meaningful understanding about how to gauge the quantity of contents of the Products as compared to the size of the box itself.”
“For instance, the front of the Products’ packaging does not have any labels that would provide Plaintiffs with any meaningful insight as to the amount of candy to be expected.”
A packaging design expert consulted by plaintiffs’ counsel determined that the empty space in these Nestlé candy products is not caused by settling in transit.
“Given the products’ density, shape, and composition, any settling occurs immediately at the point of filling the box. No additional product settling occurs during subsequent shipping and handling,” the Nestlé candy class action lawsuit states.
“The contents of the products are of a great enough density that any slack-fill present at the point of sale was present at the time of filling the containers and packaging the contents.”
The lawsuit alleges unjust enrichment, fraud, both intentional and negligent misrepresentation, and breach of implied warranty of merchantability.
The plaintiffs also cite violations of New Jersey, New York, Florida, Illinois, Michigan, North Carolina and Texas law. The lawsuit is seeking injunctive relief and compensatory, statutory and restitutionary damages.
Plaintiffs are represented by Ryan J. Clarkson, Matthew T. Theriault, Bahar Sodaify and Zach Chrzan, all of the Clarkson Law Firm PC; and by James C. Shah of Shepherd Finkelman Miller & Shah LLP.
The Nestlé Candy Class Action Lawsuit is Regan Iglesia, et al. v. Nestlé USA Inc. and Ferrara Candy Co., Case No. 3:20-cv-05971, in the U.S. District Court for the District of New Jersey.
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