Court Allows Mike and Ike® Slack-Fill Suit to Proceed

A federal court has denied a motion to dismiss a slack-fill
complaint against Just Born, maker of Mike and Ike® and Hot
Tamales® candies. White v. Just Born, No. 17-4025 (W.D. Mo.,
order entered July 21, 2017). The complaint alleged that
consumers are likely to choose opaque, “theater-sized” boxes of
the candies believing they are a good value despite allegedly
containing up to 35 percent empty space.

The court found that the plaintiff had pleaded sufficient facts to
establish a claim under the Missouri Merchandising Practices Act,
finding “a reasonable consumer could conclude that the size of a
box suggests the amount of candy in it. . . . [t]he Court cannot
conclude as a matter of law and at this stage of the litigation that
the packaging is not misleading.” Moreover, Just Born’s argument
that the packages’ labeling and disclosures of net weight, number
of pieces of candy per serving and servings per box are fatal to the
plaintiff’s claim “overlooks that the Court must consider the
plausibility of the complaint as a whole, not the plausibility of
each individual allegation.”

Another Mike and Ike® slack-fill lawsuit is pending in California
federal court. Additional details about that case appear in Issue
628 of this Update.

Issue 642