An Illinois federal court has dismissed a putative class action alleging that Fannie May Confections Brands Inc. underfills its Mint Meltaways and Pixies candy boxes. Benson v. Fannie May Confections Brands Inc., No. 17-3519 (N.D. Ill., E. Div., entered December 10, 2018). The court previously dismissed the plaintiffs’ complaint on the grounds that it provided “bare-bones” factual allegations and failed to allege a claim that would not be preempted by the federal Food, Drug and Cosmetic Act.

The court dismissed the plaintiffs’ argument that Fannie May’s 14-ounce boxes contained less slack fill than its seven-ounce boxes, the subject of the complaint. “This type of comparison tells the Court nothing about the slack-fill in the containers in question,” the court found. “The fact that a different container is filled to a different level is not only unsurprising, it is what one would expect.”

The court compared the plaintiffs’ allegations with those in White v. Just Born Inc., in which the complaint survived a motion to dismiss (but was later dismissed at the class certification stage). “Here, Plaintiffs have not identified an identical box containing a greater volume of the same product,” the court held. “Instead, they point to a larger box of the same products that contains proportionately less slack-fill. Plaintiffs ask the Court to accept the conclusion that a box containing twice as much product should include twice as much slack-fill if all of the slack-fill is functional. For the reasons stated above the Court finds this comparison unhelpful and the opinion in White distinguishable.”

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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