Two consumers initiated a class action suit against Fannie May alleging that they were deceived by the size of the candy boxes that they purchased. The consumers argued that the boxes contained an acceptable level of empty space, amounting to over a third of the volume of the boxes. The appellate panel found that though the company’s boxes correctly indicated the included weight and portion size of the candy, the consumers had sufficiently pled the initial elements of a claim for deceptive practice. However, the panel found that the consumers could not show that they suffered actual damages, because they could not demonstrate that the candy was worth less than the amount they paid, or that they could have purchased the same candy for cheaper elsewhere. The panel then affirmed the district court’s decision in favor of Fannie May.

Clarisha Benson and Lorenzo Smith each purchased an opaque, seven-ounce box of Fannie May’s chocolate for $9.99 plus tax. Benson purchased Fannie May’s Mint Meltaways, and Smith purchased Fannie May’s Pixies. Although the boxes accurately disclosed the weight of the chocolate within, and the number of pieces in each box, the boxes were emptier than either had expected. The box of Mint Meltaways contained approximately 33% empty space, and the box of Pixies contained approximately 38% empty space.

The two eventually sued Fannie May on behalf of themselves and a putative class, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and asserting claims for unjust enrichment and breach of implied contract. The plaintiffs argued that Fannie May’s boxes of chocolate contain needless empty space and that this practice misleads consumers. The

district court granted Fannie May’s motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint with prejudice. The plaintiffs then appealed.

The appellate panel began by stating that to prevail on a claim under the ICFA, a plaintiff must plead and prove that the defendant committed a deceptive or unfair act with the intent that others rely on the deception, that the act occurred in the course of trade or commerce, and that it caused actual damages. The panel found that the plaintiffs had sufficiently pled a deceptive act, as the Food and Drug Administration takes the position that the presence of an accurate net weight statement does not eliminate the misbranding that occurs when a container is made, formed, or filled so as to be misleading. The panel found that the plaintiffs’ assertion that they and others attach importance to the size of a package is enough now to indicate that a reasonable consumer does so too. Next, the panel found that the plaintiffs met the pleading standard for an unfair practice, as they claimed that Fannie May engaged in unfair conduct and averred facts that, if proved, made relief more than merely speculative.

However, the panel continued, the plaintiffs had a final hurdle: in order to sue under the ICFA, they were required to show that they suffered actual damage as a result of the defendant’s violation of the act. The panel stated that none of the plaintiffs had alleged that the seven ounces of chocolate in the box was worth less than the $9.99 they paid. The panel noted that the plaintiffs did not allege that the chocolate was defective or that they could have acquired them for a better price. The panel found that this was fatal to their effort to show a pecuniary loss. The panel, therefore, affirmed the decision of the district court.

You can read the decision here.

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