Plaintiffs Seek to Keep Junior Mints Class Action Lawsuit Alive

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Three consumers are asking a federal court not to dismiss class action claims that the packaging for Junior Mints misleads buyers as to the amount of product inside.

Plaintiffs Biola Daniel, Abel Duran and Rekeela Perkins argue that at this early stage of the litigation, they do not need to plead specific facts about the manufacturing process that results in Junior Mints boxes containing 43 percent empty space.

In moving for dismissal, defendant Tootsie Roll Industries LLC argues the plaintiffs have failed to prove the empty space, known as slack-fill, isn’t there for any of a number of legitimate reasons recognized by the U.S. Food and Drug Administration.

The company claims the plaintiffs failed to address whether the slack-fill is necessary to protect the candies, whether it’s required by the packing machinery used, or whether it results from unavoidable settling.

Plaintiffs counter that they don’t need to address those facts at this point. They say they’re not required to include in their pleadings factual information that is “peculiarly within the possession and control of defendant.”

Daniel filed this Junior Mints class action lawsuit in October 2017 and was later joined by co-plaintiffs Duran and Perkins. They claim boxes of Junior Mints contain an excess of empty space, deceiving consumers as to the amount of product they’re purchasing.

The plaintiffs claim the opaque box used to package Junior Mints prevents consumers from seeing exactly how much product the box contains. Consumers reasonably assume that the box is more or less full, they argue, only to discover after purchasing the product that the box is nearly half empty.

The Junior Mints class action lawsuit claims that the plaintiffs decided to purchase Junior Mints based in part on their impression of how much candy the box contains, which they inferred from the size of the box. The extra space inside the box deceives consumers into paying more money for less product, they say.

The plaintiffs point out that other candies similar to Junior Mints aren’t packaged with nearly as much slack-fill. As an example, they note that a 5-ounce box of Milk Duds contains about 23 percent slack-fill – significantly less than the 43 percent slack-fill they found in a 3.5-ounce box of Junior Mints.

Tootsie Roll counters that the comparison is invalid, because different candies may have different packaging needs. Plaintiffs say that to make that determination requires further litigation and exchange of evidence, as it’s a factual question that is not subject to determination at the dismissal stage.

The Junior Mints class action further note that Tootsie Roll Industries markets a larger 4.13-ounce portion of Junior Mints in a box that is almost exactly the same size as the 3.5-ounce box. The only significant difference between the two boxes is the ratio of product to empty space inside.

The plaintiffs also cite FDA guidance that says the false impression created by an oversized box can’t be remedied merely by adding a written representation of the weight or count of the products inside the box. Consumers shouldn’t be expected to guess the amount of product inside a box solely by its weight, the plaintiffs say.

The Junior Mints buyers are represented by attorneys C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Junior Mints Slack-Fill Class Action Lawsuit is Daniel, et al. v. Tootsie Roll Industries Inc., Case No. 1:17-cv-07541, in the U.S. District Court for the Southern District of New York.

UPDATE: On Aug. 1, 2018, a judge has dismissed a class action lawsuit claiming that Junior Mints boxes are underfilled, stating that consumers had unrealistic expectations for the level of specificity and description on the candy box’s labeling.