Consumer Law

Photo from U.S. District Judge John Lee’s decision.

A federal judge in Chicago has tossed a lawsuit alleging that Tootsie Roll Industries sold its Junior Mints in deceptively large boxes.

U.S. District Judge John Lee dismissed the would-be class action Tuesday because the lawsuit failed to allege that the named plaintiff suffered actual damages, the Chicago Tribune reports.

The plaintiff, Paige Stemm of Belleville, Illinois, will be allowed to file an amended complaint.

Stemm says she bought a package of Junior Mints from a Walgreens for about a dollar in March 2018. Only about 56 percent of the box was filled with candy. The rest of the package was air, or “slack-fill.”

The size of the packaging led Stemm to think she was buying more of the candy than she actually received, her suit says. She claims that the misleading packaging violated the Illinois Consumer Fraud and Deceptive Business Practices Act.

Tootsie Roll had argued that the Junior Mints box discloses the net weight and number of pieces inside, eliminating any possibility of deception. Lee sided with Stemm on that point.

Despite those disclosures, “the overall size of the boxes may mislead a reasonable consumer into believing that each piece is much larger than it actually is,” Lee wrote. “What is more, Stemm alleges that 44 percent of the packaging is slack-fill, a rather substantial amount by any measure.”

But Lee ruled for Tootsie Roll in the dispute over actual damages. The damages claim is not saved by an allegation that Stemm would not have bought the Junior Mints had she known about the slack-fill, Lee said. What is missing, he said, is an allegation that Stemm paid more than the actual value of the candy.

Lee suggested a damages claim that might have been successful: an allegation that the oversized box led Stemm to think the individual candy pieces were bigger than they were, and the price she paid was the fair market value of the larger pieces.

The suit is one of many that have been filed over slack-fill in candy boxes. At least 29 such suits were filed in 2015 and at least 37 more were filed in 2016, according to a 2017 report by the U.S. Chamber Institute for Legal Reform.

A federal judge in New York dismissed a different suit over Junior Mints slack-fill in August.