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Daniel v. Tootsie Roll Indus. LLC

Court Dismisses Claim That Junior Mints Boxes Mislead as to Amount of Candy Inside

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Biola Daniel, Abel Duran, and Trekeela Perkins, on behalf of themselves and all others similarly situated, Plaintiffsv.Tootsie Roll Industries, LLC, Defendant

MEMORANDUM AND ORDERPlaintiffs Biola Daniel (“Daniel”), Abel Duran (“Duran”), and Trekeela Perkins (“Perkins”), on behalf of themselves and all others similarly situated, bring this action against defendant Tootsie Roll Industries, LLC (“defendant”), asserting violations of the Federal Food Drug & Cosmetic Act, the New York General Business Law, and the Mississippi Consumer Protection Act. Plaintiffs allege that defendant’s opaque boxes of Junior Mints candies contain “non-functional slack-fill,” essentially wasted, empty air, which mislead consumers as to the amount of product contained therein. Defendant now moves, pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(2), 12(b)(6), and 12(f), to dismiss plaintiffs’ First Amended Class Action Complaint, and/or to strike plaintiffs’ class claims. For the following reasons, defendant’s motion to dismiss is granted, and its motion to strike is denied as moot.BACKGROUNDI. Factual BackgroundBased in Chicago, Illinois, defendant “manufacture[s], package[s], distribute[s], advertise[s], market[s] and s[e]l[ls]” Junior Mints, a 0.5″ wide “ ovoid chocolate coated mint cand[y],” to “millions of consumers nationwide.” First Amended Class Action Complaint (“Am. Compl.”)

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