I’m not a morning television person, even if it involves news entertainment shows such as ABC’s “Good Morning America” and NBC’s “Today” programs.
Mornings can be harsh enough in this world, particularly in the dead of winter in Chicago, so I opt for music until I reach the office. So when Bob Garrison, editor of Prepared Foods Magazine, emailed me the story about Jeff Rossen of "Today" investigating “underfilled” theater box candies on "Today" last week, my interest was piqued.
Mind you, I don’t go to the movies often. Today, with Amazon, Netflix and Xfinity providing households with a variety of movie and television series options, I need a really good reason to dish out $40 to $60 for my wife and I to hear cellphones going off in the dark.
Nonetheless, Rossen ― who leads us to believe he’s quite a candy lover ― goes on a movie house shopping spree in the segment, purchasing Nestlé and Just Born products. He then returns to the studio and carefully stands up the boxes, cutting open a flap in each one to show the amount of white space there is before one sees actual candy.
Rossen was prompted to go on this sugar shakedown once he learned that the Clarkson law firm filed class-action lawsuits against several major and midsized candy companies. One of the lawsuits charges that Nestlé intentionally “shortchanges and misleads consumers” on a bevy of products. Another lawsuit claims “Mike & Ike underfills by 46%.”
Both companies responded saying the “white space” stemmed from necessary “functional head space,” a result of high-speed packaging requirements and subsequent settling during shipment.  
Also in the segment, Rossen queries Edgar Dworsky from Consumer World, who responds by saying the functional head space issue doesn’t justify “deceptive packaging.”
Upon reviewing the clip from “Today,” I have to say that Rossen makes a point ― there is a lot of head space. But then, the actual weights stated on the package are accurate. So why make the boxes so large?
History suggests that the theatre box size, which could range from 3 oz. to 12 oz., stemmed from sharing. After all, a big box is easier to handle and share with one’s date ― especially in the dark ― than a tiny box. 
And as Matt Pye, Just Born’s v.p. of corporate affairs, explains, there’s a real need for the white space.
“Functional head space is necessary for a variety of reasons, including for high-speed packaging purposes,” he says. “While our packaging specifications are proprietary, the functional headspace that allows for high speed filling of our packages and settling is no different than many other candy and food packages.”
In fact, Pye points out that, “in terms of size, over the last several years (5-10 years), most candy manufacturers have downsized their box weights and box sizes.” Moreover, the category has grown, experiencing “a CAGR of 3.1% over the last 5 years (IRI Multi-Outlet),” outpacing the overall candy category, which had a CAGR of 2.8%.” 
Doesn’t sound like there’s a lot of consumer dissatisfaction, does it?
Also, given that the amount stated on the box is accurate, most consumers don’t really think they’re being deceived ― until they see the white space in a fully-lit studio. And, as someone in the industry who knows a great deal about confectionery concessions points out, “Anyone dissatisfied with the candy purchase can just take it right back and get a refund.”
Given the fact that this executive keeps a close eye on all and any complaints from consumers about confectionery products, he told me that he’s only received a handful of complaints about candy sold in movie theatre concessions.
“And they all start the same…I paid $3.75 (or more) for this candy…” It’s about the cost. But as we all know, that’s the price of pleasure at the theatre. As I understand it, movie houses don’t make a large margin on films shown; concession sales are where they can make some profit.”
Should we feel good that there are law firms protecting consumers from so-called sleight-of-hand candy manufacturers? Well, not according to Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR). In response to NBC’s “Today” show segment, Rickard said the so-called slack fill lawsuits against candy makers misses the point: These cases are about lawyers making money, not consumers.
“In these kinds of cases, lawyers make millions while only a very small percentage of consumers will see any money,” she says.
Lisa, please, say it ain’t so. Lawyers simply in this for the money?
New research released by ILR earlier last week shows the explosion of food class-action lawsuits over the past few years; the number of cases has ballooned from 20 in 2008 to more than 170 new food class actions filed in or removed to federal court in 2016. Among many examples, the report details questionable lawsuits like the one against Starbucks for putting too much ice into its iced coffee.
“NBC’s segment is further proof of the need for class-action litigation reform now headed to the floor of the U.S. House,” Rickard says. “Class-action lawsuits should pay consumers first, not the lawyers. If the feeding frenzy on food marketing class actions continues, consumers will pay the price – including higher costs for candy at the movies.”
In browsing through the U.S. Chamber Institute for Legal Reform’s “The Food Court – Trends in Food and Beverage Class Action Litigation,” I found the 62-page document enlightening and truly informative. It was also scary at the same time. I urge all to download the PDF for reference.
You’ll find examples of settled lawsuits whereby the law firms do especially well and consumers not so much. There are also several citings of production-line lawyering, companies pumping out class-action lawsuits because they can.
Now don’t get me wrong, I have nothing against lawyers protecting consumers. My son and daughter-in-law are legal eagles. And I want the federal, state and local governments protecting me as a consumer.
But simply suing for the sake of padding one’s pockets is definitely a misuse of the law. Consumers should not be used for the mere purpose of pumping up billing. It’s definitely crass versus class.
As Pye says, “These allegations represent just the latest in an increasing number of recent, similar lawsuits filed against other candy and food brands, and we intend to fully defend ourselves against these baseless and inaccurate claims.”