JEFFERSON CITY, Mo. (CN) - A federal judge refused to throw out a class action accusing the maker of Mike and Ike and Hot Tamales of deceptively packing their candy boxes less than two-thirds full.
On behalf of a nationwide class and a Missouri subclass, Daryl White Jr. sued Just Born Inc. in February, for unjust enrichment and violations of the Missouri Merchandising Purposes Act. He claims that 35 percent of each candy box is air.
U.S. Judge Nanette Laughrey on Friday denied Just Born's motion to dismiss.
Getting right down to it, Laughrey wrote in the second paragraph of her 22-page ruling: "Consumers spend an average of 13 seconds making an in-store purchasing decision. The decision is heavily dependent on a product's packaging, in particular, the package dimensions. When faced with a large box and a smaller box, both containing the same amount of product, a consumer is more likely to choose the larger one, thinking it is a better value. ... Yet there is 35 percent nonfunctional, slack-filled space in a Hot Tamales box and 34 percent in a Mike and Ike box."
Laughrey found that sufficient to allege a cause of action under the Missouri Merchandising Purposes Act.
White said in his complaint that Bethlehem, Pa.-based Just Born used slack filling for no reason but to "create a false impression as to the quantity of food they contain." "Customers would not have purchased the products had they known that the containers were substantially empty," the lawsuit states.
Just Born is facing a similar lawsuit filed in March in Los Angeles Federal Court (Stephanie Escobar v. Just Born Inc.).
Just Born argues that the empty space in its boxes serves the purpose of conveniently dispensing the candies through the perforated opening, and that "reasonable consumers would not expect the candy boxes to be filled to the brim."
After considering several similar cases presented by both sides, Laughrey refused to dismiss claims of deceptive packaging or unjust enrichment.
White is represented by David Steelman, with Steelman, Gaunt & Horsefield, of Rolla, who did not immediately respond to requests to comment.
Matt Pye, vice president of Just Born, has previously said that the company will "vigorously defend" itself against "baseless allegations."
"Our products and labels comply with all FDA regulations and provides consumers with the information they need to make informed purchase decisions," Pye said in a statement.