Court Dismisses Slack-Fill Suit Against Fannie May

An Illinois federal court has dismissed without prejudice a putative slack-fill class action against chocolatier Fannie May Confections Brands, Inc., ruling the plaintiffs provided only “bare-bones” factual allegations and failed to allege a violation of the Federal Food, Drug and Cosmetic Act that would allow their state law claims to avoid preemption. Benson v. Fannie May Confections Brands, Inc., No. 17-3519 (N.D. Ill., entered February 28, 2018). The court also dismissed the plaintiffs’ claim for injunctive relief, finding they lacked standing because they failed to adequately allege a risk of future harm. “[A]lready aware of Fannie May’s alleged deceptive practices, Plaintiffs cannot claim they will be deceived again in the future,” the court held.

In addition to the products they did purchase—Fannie May’s Pixies and Mint Meltaways—the plaintiffs also alleged that packages of eight other chocolate candies contained slack fill and brought the action on behalf of consumers who purchased those as well. The court held that the plaintiffs lacked standing to bring those claims because they had “not shown that the Non-Purchased products are substantially similar to the products they purchased . . . As Fannie May points out, and the exhibits to the complaint confirm, the Products are all substantially different in size, ingredients, and in many cases, their packaging.”