Woman files suit over Junior Mints packaging, asking: Where’s the candy?

By Mario Tacher on Apr 03 in Legal News.

Junior Mints, the chocolate-peppermint candy that made a memorable star turn in a hospital operating room during a “Seinfeld” episode, now finds itself in a Chicago federal courtroom after an Illinois woman filed a consumer fraud lawsuit over allegedly deceptive packaging.

While Kramer declares, “It’s chocolate; it’s peppermint; it’s delicious,” there is nearly as much air as candy in the box, according to the lawsuit, filed against Chicago-based Tootsie Roll Industries, the maker of Junior Mints.

“They have created this oversized theater box and it misleads consumers because consumers believe they’re getting more candy when they purchase a box of Junior Mints than they’re actually getting,” Christopher Moon, an attorney representing the plaintiff, said Friday. “The size of the actual packaging is itself a misrepresentation.”

The Tootsie Roll offices were closed Friday for the Good Friday holiday, and executives were not immediately available for comment.

Filed on Thursday on behalf of Paige Stemm, the lawsuit seeks class-action status for what it claims is Tootsie Roll’s “misleading, deceptive and unlawful conduct” in packaging its Junior Mints, which take up only slightly more than half of their familiar cardboard box. It comes after a similar lawsuit a New York woman filed against the company last year.

The Junior Mints lawsuit is part of a growing trend of cases brought against food manufacturers for allegedly deceptive and unnecessary empty space in packaging. Governed by federal regulation, slack fill is “the difference between the actual capacity of a container and the volume of product contained therein.”

In some cases, slack fill serves a purpose, such as the air cushion that protects potato chips from breaking in the bag. In other cases, a larger package may simply be misleading consumers, according to lawsuits against manufacturers.

“In a situation like Junior Mints, that empty space actually can increase the chances that the candies will be damaged because they move around quite a bit inside the hard cardboard box,” Moon said.

The number of federal class-action lawsuits related to slack fill in food packaging increased from 20 in 2008 to more than 110 in 2015, according to an article published last month by the American Bar Association.

Moon’s firm filed a similar lawsuit last week against Oakbrook Terrace-based Ferrara Candy, which makes Lemonhead, Jujyfruits, Chuckles and other brands, all of which allegedly contain deceptive empty space in their packaging.

Such lawsuits have met with mixed results in the courts.

A federal judge in Chicago last month dismissed a case against chocolatier Fannie May over allegedly excessive packaging space. The plaintiffs plan to file an amended complaint, according to court documents.

Meanwhile, a high-profile 2015 case Minnesota-based spice-maker Watkins brought against McCormick & Co., the Maryland-based spice giant, over allegedly underfilled pepper tins is ongoing in federal court in Washington, D.C.

Junior Mints have been a candy staple since they were launched in 1949. The brand was acquired by Tootsie Roll in 1993, the same year it was immortalized in the “Seinfeld” episode “The Junior Mint,” in which one of the candies inadvertently falls from a hospital observation gallery into the open abdomen of a patient on the operating table.

“Who’s going to turn down a Junior Mint?” Kramer asks after the incident, a premise central to the deceptive advertising claimed in the slack fill lawsuit, which is seeking undisclosed damages and an order that Toostie Roll repackage its Junior Mints, Moon said.

“We’re asking that they either fill the box more or reduce the size of the packaging to reduce the unlawful slack fill,” he said.

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