Slack fill laws are in the news again. A federal judge in Chicago has just dismissed a claim by an Illinois woman that her box of Junior Mints was not full enough. See news report here and here.

The woman was Paige Stemm and she bought a “big” box of Junior Mints for $1 at her local Walmart. She was allegedly disappointed to find the box “only half full.” She hired a lawyer and filed a lawsuit against the maker of Junior Mints, Tootsie Roll Industries, Inc. Both federal and California law regulate what is generally known as “slack fill.” See federal regulations at  21 C.F.R. § 100.100; Cal. Bus. & Prof. Code, §§ 12606 and 12606.2. In general, a company cannot sell a ginormous box of some product with only a tiny bit of product. That is considered to be deceptive packaging.

That being said, a certain amount of slack fill is considered “functional.” The air in your bag of chips is functional slack fill: It helps keep the chips from getting crushed. With respect to her Junior Mints, Stemm said that the emptiness in her box of Junior Mints was not functional; that is, the emptiness did not protect the mint candies from getting crushed or smooshed. Another exception to the slack fill laws is settling. A box/bag of cereal is a good example here. When the box is filled at the processing plant, the box/bag may be full. But the contents settle in shipping. Stemm also claimed that the emptiness of her box of Junior Mints was not caused by settling.

Stemm filed her lawsuit under both federal regulations and the Illinois version of the Deceptive Business Practices Act. However, according to the federal judge, Stemm did not provide any evidence or sufficient pleadings in her complaint at this stage that the Junior Mint slack fill was not functional. She merely stated that the box was big, it was half empty and that she expected more mints. However, the judge ruled that such was not enough to allow the slack fill case to proceed. According to the news report, the judge held that the fact that Stemm “… expected to receive something more than what she got, in and of itself, does not constitute actual damages.” The judge also noted that Stemm did not claim that the Junior Mints were defective in any way or that the amount received were somehow worth less than the amount paid for the product. The case is Stemm v. Tootsie Roll Industries, Inc., Case No. 18 C 2289 (US Dist. N.D. Ill. March 19, 2019).

The case was a “win” for Tootsie Roll (so far), but the company may want to shrink their box-size. Stemm is not the only plaintiff to sue. A similar case was filed in New York a couple of years back seeking to certify a class action of consumers who felt cheated by the size of their Junior Mint boxes. See news report here. See Daniel v. Tootsie Roll Industries, Case No. 17 C 7541 (NRB) (US Dist. S.D. NY August 1, 2018). That case was also dismissed.

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