M&M Class Action Says Minis Tubes Have Too Much Empty Space

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On April 11, a class action lawsuit was filed against M&M candy maker Mars Inc. for deceptively selling tubes of M&M Minis with “excessive empty space.”  The industry term for empty space in packaging is “slack-fill,” and the class action lawsuit claims that tubes of M&M Minis are “formed or filled as to be misleading and with non-functional slack-fill.”

The M&M Minis tubes are solid and covered in wrapping so consumers cannot see into them, and are misleading in that consumers think that they “are buying more than what is actually being sold,” the class action argues.

“Defendant has deceived Plaintiffs and other consumers nationwide by mischaracterizing the volume of their Products [M&M Minis tubes],” according to the complaint, and through “these unfair and deceptive practices, Defendant has collected millions of dollars from the sale of its Products that it would not have otherwise earned.”

The deceptive slack-fill class action alleges that the 1.08-ounce tube of M&M Minis is 22 percent empty space, and the larger 1.77-ounce tube contains 14 percent empty space. That amount of slack-fill is unnecessary, and therefore deceptive and misleading, the complaint argues.

The class action states that misleading food packaging is governed by the federal Food Drug and Cosmetic Act (FDCA). Federal regulations under the FDCA provide that “nonfunctional slack-fill” is misleading, unless it is necessary to protect the package contents, to properly close or seal the package, is a result of contents shifting or settling during shipping, the packaging itself is reusable and has a significant portion of the value of the item being sold, or to fulfill some other function and the slack-fill is clearly communicated to consumers.

The complaint claims those exceptions to the rule against slack-fill do not apply to M&M Minis tubes. “There is no practical reason for the non-functional slack-fill used to package the Products other than to mislead consumers as to the actual volume of the Products being purchased by consumers,” the class action argues.

The M&M Minis tube deceptive slack-fill class action lawsuit also asserts that consumers pay a premium price for M&M Minis, and the overly large packaging places a role in that. The complaint states that M&M Minis tubes cost almost twice as much per ounce as competing candies such as Nestle SnoCaps, and over four times as much per ounce as Reese’s Pieces. The large tubes mislead consumers at the point of sale as to how much they are getting, and they would not pay such a premium price if they knew of the amount of empty space in the packaging, according to the class action.

Plaintiff Nikita Godsonov of New York says he purchased a 1.77-ounce tube of M&M Minis, relying on its outer packaging.  Godsonov claims that he reasonably believed the tube would be full, and was damaged by the misleading slack-fill. He seeks to represent a Class of all persons in the U.S. who made a retail purchase of one or more M&M Minis tubes.

Godsonov is represented by C.K. Lee and Anne Seelig of the Lee Litigation Group, PLLC.

The M&M Minis Tubes Slack-Fill Class Action Lawsuit is Nikita Godsonov, et al. v. Mars Inc., Case No. 1:16-cv-01745, in the U.S. District Court for the Eastern District of New York.

UPDATE: On Aug. 29, 2016, the plaintiff in a class action lawsuit alleging M&M Minis tubes are deceptively underfilled urged a federal judge not to dismiss the case.