M&M Consumers Fight Dismissal of Slack Fill Class Action

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The plaintiff in a class action lawsuit alleging M&M Minis tubes are deceptively underfilled is urging a federal judge not to dismiss the case.

Lead plaintiff Nikita Godsonov alleged in his class action lawsuit that the tubes contain empty space, called “slack fill,” that serves no purpose, and is hidden behind the packaging.

Mars shot back, arguing that the claims in the class action are preempted by the Nutrition Labeling and Education Act in a request for a pre-motion conference.

Mars seeks to dismiss the class action because they say the plaintiff is constructing new regulations to apply to M&M Minis and the regulation in question prohibits requirements that aren’t identical to the Food and Drug Administration’s labeling regulations.

Mars argued further that the plaintiff is hoping to cash in on a lucrative settlement, along with others submitting similar class action lawsuits over alleged “slack fill.”

Mars contends that the plaintiff’s attorney has handled similar class actions against other companies, including the Hershey Company and Starbucks.

Mars pointed out that the plaintiff’s complaint contains references to “chewing gum,” the subject of a class action against Hershey over Ice Breakers Ice Cubes sugar free gum.

However, in a letter to U.S. District Court Judge Nina Gershon, the plaintiff argues that the “allegations are completely consistent with FDA requirements.”

“The complaint alleges that defendant sold its product in misleadingly sized containers,” points out the plaintiff. “Defendant maintains that the FDA does not require that containers be filled to the ‘brim.’ But this language is defendant’s own invention. Nowhere does the complaint argue that defendant’s containers should have been filled to the brim. At any rate, FDA regulations would not preempt such a claim if the failure to so fill a container cannot be justified as functional slack-fill.”

The plaintiff also addressed Mars’ other arguments for dismissing the class action lawsuit in their letter to the judge. Godsonov argues that injunctive relief is appropriate to protect other consumers from paying extra for the slack fill.

“The non-transparent containers of the products are invariably covered with brightly colored, non-transparent wrappings so that plaintiffs and class members cannot see the non-functional slack-fill in the container,” the complaint said. “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.”

Additionally, the plaintiff contends that claims for fraud, unjust enrichment, and negligent misrepresentation should not be dismissed because under New York state law these claims are “versatile” and “pled in the alternative.”

The plaintiff also claims that Mars’ argument that they are attempting to enforce New York laws on consumers nationwide as a part of this class action is not accurate as well.

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

The M&M Minis 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.