ST. LOUIS - The maker of Raisinets will have to continue defending claims that it slack-filled boxes of its chocolate-covered raisin candies in violation of a state consumer protection law.
U.S. District Judge Henry Autrey on Feb. 7 denied Nestle USA Inc.'s motion to dismiss a putative class action brought last year by lead plaintiff Lahonee Hawkins involving the packaging of the candies.
Autrey held that Hawkins, who had purchased her box of candy for $1.59 at a Walgreens store in Rolla, has plausibly alleged a claim under the Missouri Merchandising Practices Act (MMPA). He wrote that "reasonableness is an issue of fact, which cannot be resolved on a motion to dismiss."
Hawkins alleges that she “suffered an ascertainable loss as a result of Defendant’s unlawful conduct because the actual value of the Products as purchased was less than the value of the Products as represented.”
According to the order, Hawkins attached importance to the size of her Raisinets box and claims she was misled to believe that she was purchasing more than she actually received in a 3 ⅛-inch by 11⁄16-inch by 6 3⁄16-inch box, approximately 45 percent of which was slack-filled, or empty space.
Nestle sought to dismiss the suit, arguing that the plaintiff failed to state a claim under the MMPA and therefore had no standing to seek injunctive relief. It further argued that a second count in the suit should be dismissed because it is "derivative of her legally insufficient MMPA claim."
Autrey, however, found that Hawkins has plausibly alleged "at minimum, that the packaging unfairly suggests the boxes contain more product than they actually do, or tends to or has the capacity to mislead consumers or to create a false impression, which is sufficient for purposes of alleging an unlawful practice under the MMPA."
He wrote that Nestle's statement that a reasonable consumer would "instantly realize" after picking up a box that it is not "filled to the brim" because the contents rattle, "does not go to what Plaintiff has alleged."
"Plaintiff has alleged that the boxes are substantially empty, have substantial, non-functional slack-fill, and have an amount of slack-fill that cannot be justified; that industry-standard," he wrote.