Hot Tamales, Mike and Ike Packaged Deceptively, Candy Class Action Claims

A Missouri man claims Hot Tamales and Mike and Ike candies are deceptively packaged with too much empty space in the box.

Plaintiff Daryl White alleges in a class action lawsuit filed February 16 that defendant Just Born Inc. has been marketing its Hot Tamales and Mike and Ike candy in packages that are significantly bigger than the volume of candy inside them. This packaging is deceptive to consumers, he claims, as they end up getting less product than the packaging leads them to expect.

The resulting empty space inside the packaging is known as “slack-fill.” White says slack-fill takes up over a third of the packages for Hot Tamales and Mike and Ike. It accounts for about 35 percent of the space inside a Hot Tamales package and about 34 percent of the space inside a box of Mike and Ike, the class action lawsuit claims.

Both products come in opaque boxes that prevent consumers from seeing how much product is inside before they decide whether to buy it, White says.

He argues the slack-fill in these boxes is “non-functional, and therefore misleading and unlawful.” The size of the packaging is a significant factor that White and proposed Class Members use in deciding whether to buy the product, the class action lawsuit says.

White also cites research published in Consumer Reports that says when consumers are “[f]aced with a large box and a smaller box, both with the same amount of product inside … consumers are apt to choose the larger box because they think it’s a better value.”

He believes the amount of slack-fill in Hot Tamales and Mike and Ike boxes misleads consumers into thinking they’re getting more product than what’s actually in the box. Had he or Class Members been aware of how much empty space was inside these boxes, he says, they never would have bought those particular candies.

In this Hot Tamales and Mike and Ike class action lawsuit, White argues the alleged slack-fill violates both federal and state laws. Regulations promulgated under the federal Food, Drug, and Cosmetic Act say packaging that does not allow the consumer to view its contents is misleading if it contains “non-functional” slack-fill.

Slack-fill is considered non-functional if it does not serve one of a short list of specific purposes, such as protecting the contents or providing more room on the label for product information. White argues that the slack-fill in Hot Tamales and Mike and Ike boxes serves none of these purposes.

White also cites Missouri state law that deems a food product misbranded “[i]f its container is so made, formed or filled as to be misleading.”

White proposes to represent a plaintiff Class consisting of all persons in the U.S. whop purchased Hot Tamales or Mike and Ike candy within the applicable statutory limitations period. He also proposes a subclass consisting of Class Members who live in Missouri.

He seeks an award of damages, restitution, attorneys’ fees and costs of litigation, all with pre- and post-judgment interest.

The plaintiff’s attorneys are David L. Steelman, Stephen F. Gaunt and Patrick J. Horsefield of Steelman Gaunt & Horsefield.

The Hot Tamales and Mike and Ike Slack-Fill Class Action Lawsuit is Daryl White, Jr. v. Just Born Inc., Case No. 2:17-cv-04025, in the U.S. District Court for the Western District of Missouri.

UPDATE: On Aug. 7, 2018, a Missouri federal court rejected Class certification in a proposed Mike and Ike class action lawsuit alleging the company underfills their candy boxes on purpose in order to maximize their profits.