This week, Judge Buchwald dismissed a complaint against Tootsie Roll Industries, makers of the candy Junior Mints, claiming that packages of Junior Mints contained “non-functional slack-fill” which mislead consumers as to the amount of product contained in the package.
Judge Buchwald noted that the labeling on the package, including the estimated servings in each package, could alert a reasonable consumer how much of the product was in each package:
[P]laintiffs suggest that only an “unusually diligent consumer could derive the [Product] count by multiplying the number of servings by the number of pieces per serving.” We disagree. The law simply does not provide the level of coddling plaintiffs seek. See Kommer, 252 F. Supp. 3d at 312 (“Assuming that a reasonable consumer might ignore the evidence plainly before him ‘attributes to consumers a level of stupidity that the Court cannot countenance and that is not actionable under G.B.L. § 349.’” (quoting Chiste v. Hotels.com L.P., 756 F. Supp. 2d 382, 404 (S.D.N.Y. 2010))); Weinstein v. eBay, Inc., 819 F. Supp. 2d 219, 228 (S.D.N.Y. 2011) (“[T]he applicable legal standard is whether a reasonable consumer, not the least sophisticated consumer, would be misled by Defendants’ actions.”); 116 Boxes, 80 F. Supp. at 913 (“Infantile anticipation is not the test.”). The Court declines to enshrine into the law an embarrassing level of mathematical illiteracy. A reasonable consumer is capable of multiplying 3.5 by 12 (42), 4 by 12 (48), and 10 by 12 (120), the number of Junior Mints in the 3.5 oz., 4.13 oz., and 10.5 oz. boxes, respectively.
Judge Buchwald also dismissed the claims for injunctive relief, noting that the plaintiffs had not shown the requisite non-pecuniary harm.