Melissa Carter

Melissa Carter: Halloween candy hijinks

I admit October is my favorite month of the year. With it comes my son’s birthday, Atlanta Pride and, of course, the greatest holiday of the year … Halloween! But as you go out to get candy for the little trick-or-treaters over the next couple of weeks, just know that one item on the shelf is currently involved in a federal class action lawsuit.

It started with a quick trip to a store in New York last month, when Biola Daniel grabbed a $1.49 box of Junior Mints on the way out. She got frustrated upon opening it when she saw it was only about half full.

It’s called “slack fill,” and it’s the same process that you discover when opening a bag of chips. The bag seems to have as much air as it does chips, making you feel cheated. But it is intentional on the part of the manufacturer in order to protect the chips during shipping. And it’s not just regular air, since oxygen can cause the potatoes to spoil and the oil to go bad. They use nitrogen, yum.

But what about the candy? Biola says when she opened the box of Junior Mints, she found 40 percent air. She later compared this to other boxed candies and found Milk Duds had 23 percent and Good n Plenty had 12 percent slack fill.

Enough is enough. Biola filed a class action lawsuit alleging she “was financially injured as a result of Defendant’s [Tootsie Roll Industries’] deceptive conduct as alleged herein because she did not receive the quantity that she paid for.” Because the box was cardboard, the suit notes, she had no way to know she was buying less candy than she expected.

As much as I want to applaud her efforts, history frowns upon her success. A case is currently pending in Los Angeles and involves Sugar Babies candy. Lawyers for Tootsie Roll Industries argued in a motion to dismiss the suit that the plaintiff’s slack-fill arguments fell short.

Here in the South last year, a court tossed out a suit against Sour Patch Watermelon Candy filed because of too much slack-fill. The judge said they had failed to prove they were injured.

I can understand an argument that slack-fill is necessary for chips because of the delicate nature of the product, even though I’m not sure half the bag needs to be empty. However, in the case of candy, I don’t think the extra air is necessary or will do anything to protect the heavy substance anyway. You’d think packing more pieces in those packages would do more to help keep the pieces from getting knocked around.

When at first you don’t succeed try, try again. I do hope Biola’s fight – or any that follow – changes the way manufacturers rob us of what we paid for; and after the days of anticipation and costuming efforts, our kids don’t have to rip open their Halloween goodness only to find their booty half-full.