Candy Packaging Ethics: How Much Air Can A Candy Box Contain Without Being Deceptive?

Peeps Manufacturing

Stephanie Escobar is suing the makers of “Mike and Ike,”  claiming that it is misleading customers by filling nearly half the box with air rather than candy. She bought a box of “Mike and Ike” for  $4 at a Los Angeles movie theater, and was stunned  to find that  46 percent of the it  was filled air, what is known in the business as “slack-fill.”  She checked a box of Hot Tamale candy sold by the same company, and there was only 54% candy in that box too, disappointing her greatly.

Her suit argues candy maker “Just Born Quality” Confections is violating California’s false advertising law, unfair competition law and the consumer legal remedies act.

(This is a separate movie candy ethics issue from the apparently obscene $4 price, much on my mind since on my recent visit to the the theater to see “Fences,” a drink, hot dog and popcorn cost me $19. 85. Movies charge those prices to keep the prices of tickets down, and in the aggregate, that is better for consumers and the theater than charging 20 bucks for the movie and half as much for the junk food.)

Just Born vice president Matt Pye promised a vigorous defense to the “baseless allegations.”“Our products and labels comply with all FDA regulations and provide consumers with the information they need to make informed purchase decisions,” Pye said in a statement.

That rather ducks the issue, doesn’t it? How often have you been shocked that a container is mostly air? Many products, candy notable among them, have been reducing the size of the product sold rather than raising the price. That is fair enough, if one can see what one is purchasing. A box, however, doesn’t permit a consumer to see what’s inside. The argument that the labels are compliant isn’t the same as proving that it’s ethical to have a container that’s twice as large as the the contents require.

Fortunately, I’ve always hated Mike and Ike. AND Hot Tamale. But now I’m wondering about my Raisinettes…

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Pointer: ABA Journal

16 Comments

Filed under Business & Commercial, Law & Law Enforcement, Marketing and Advertising

16 responses to “Candy Packaging Ethics: How Much Air Can A Candy Box Contain Without Being Deceptive?

  1. Chase Davidson

    For some products, like chips, you need to have some slack fill – the slightly compressed air that fills the bag helps protect fragile foodstuffs. With a candy like Mike and Ike’s, there’s really no such excuse – the only explanation is that they’re intentionally deceiving customers. Thank goodness most products are labeled by weight rather than by volume; you can at least check the label and get a general idea of how much is inside, at least if you already know how much it weighs.

    There is a question here, in my mind, of where the burden falls, though. In a perfectly ethical world, manufacturers and vendors would always be honest, and we wouldn’t need sayings like ‘buyer beware’. We don’t live in that world though, so I have to ask how much of the ethical burden lies on the vendor to be honest, and how much lies on the consumer to be informed and read labels? (I won’t get into the fact that you can’t really read the label at a theater – the candy is stored in or behind the counter, usually in a glass partition.

  2. Arthur in Maine

    Let me offer a different explanation than Chase’s. A good friend of mine once managed – managed, not owned – an independent movie theater in Maine.

    Independent being part of the equation. The chains have more leverage, but not THAT much.

    When a movie is released, there’s a sliding scale, based on week, as to how much the house grosses. In the first week, the distributor gets something like 95%of the gross. The ONLY way a movie theater can pay for the operating expenses is by selling grossly overpriced popcorn, drinks and candy.

    Week two, it shifts to something like 80% studio and 20% venue. It slides from there.

    This is why movie theaters love films they can run for four weeks or more – They may be shown in a theater that seats fifty, but even if the theater is half-filled they still make money. The candy sales are a bonus.

  3. To be fair, there’s a distinct chance that since they’re selling candy in smaller quantities to cut costs, they decided that the cost of designing smaller boxes and retooling their machinery to manufacture them would defeat the purpose, especially if they’re going back to the original quantities in the foreseeable future. I’m positive that point came up in their deliberations, even if they really are trying to deceive people, and it’s important that we take into account that they would have taken it into account.

    • Anonymous Coward

      Came here to say this as well.

      As long as they do not lie about the net weight of the contents I see no real issue here.

      I do not think it is lawsuit worthy, but then again IANAL.

      I also wonder if the offended party still would have felt like suing if the box was $1. ie. was it a case of being angry over the box empty space, or the fact that it was exorbitantly priced.

      • Beckie

        Not that it’s ethical to do it, but those same big boxes of candy they sell in theaters you can find at some stores like Walmart, Target, and some grocery stores for around $1.00. At least where I’m at. If she’s concerned about the $4.00 price -obviously a big markup or other stores wouldn’t have them for $3.00 less – she could stop and get some first.

        She wouldn’t get less air likely, but as you said, maybe the price is a factor.

  4. Chris Marschner

    This is frivolous. Candy and its packaging is inherently deceptive. Does the plaintiff also believe the candy is healthy because of the fruiti-licious pictures of cherries, grapes and watermelon on the box?

    The moment the package was handed to her she would have immediately known of the weight contained in the box. She could have simply handed it back saying I changed my mind.

    This is an example of someone finding a consumer protection law that could be exploited for monetary gain.

    • But that doesn’t answer the bigger question about principle-

      At what volume of “empty” does a package become deceptive?

      Is your answer, “never”?

      Or do you think there is an ethical limit and you just don’t believe it’s been met in this case?

      • One perspective would be the front of the box (ad space). When you’re competing to get noticed against twizzlers and red vines, which have a distinct size and are near 100% volume utilization, you want your box to have a similar footprint for marketing purposes. Additionally, there might be a substantial nutrition label that you are federally mandated to place on the back of the package with minimum font sizes. If she wants volume to be removed so there’s less air, I suppose they could make it thinner, but then we begin to worry about crushed product and an inability to “un-wedge” the product from the box because fingers can no longer fit in.

        It’s a toss-up if she can prevail, but I think there’s probably enough defensible positions for the manufacture to prevail.

      • Of course, it would be interesting to see if they sold the exact same dimension box in other venues (convenience stores, grocery stores, best buy) with greater volume utilization.

    • My question is “what are the market forces driving price to quantity changes?”

      And though “inflation” is a component, that isn’t good enough to explain the phenomenon as inflation isn’t a cause either, but an effect of other market forces.

      Once we delve into this question, I think we’ll reveal a lot of other unethical conditions driving this, and instead of this being a question of “is this episode unethical” it becomes a question of “was the unethical nature of this episode even avoidable because it was born into an already unethical situation?”

  5. Chris Marschner

    Follow up. Does she believe “Peeps” are actual chickens?

    • Pennagain

      Don’t be silly. Of course, they’re not full grown chickens! They’re just babies. My uncle had a peeps farm down in south Jersey. Me and my brother used go for weeks in the summertime and we spent most of the time watching the peeps play around their coops (different ones for each color so there wouldn’t be any funny business going on). That’s how I know they are humanely killed by putting a bunch of air in and then stuffing the rest with sugar. What a great way to go, huh!

      On the serious side … Mike & Ike candy are very prone to stickiness. Obviously they need more air than, say, Jujyfruits, which aren’t made of anything natural so they don’t melt, but the slightest hint of moisture in a Mike or an Ike and off comes the coating and they make a gelatinous lump in your pocket.

      Conclusion: Money just looks and feels smaller now because your hands are bigger. Same with the candy. And there’s more air because of global warming, which is a good thing.

      So cheer up Stephanie. Movie screens are way bigger. I went to The Great Wall the other day and if I looked at the picture straight on I couldn’t tell what was happening at the sides. It turned out okay though: I figured that the Chinese part was on the left but I could understand the English part on the right if I turned that way, so I did so in my reclining chair which has more air in it than the old straight up chairs, thank goodness. The Dolby sound system vibrated a couple of pounds off my ass too.

      Jack was right about the price, you know. With my senior and before-noon discounts, and the five dollars in dimes I saved up (which don’t count as money because they’re only coins), the movie was only 20 bucks.

  6. Al Veerhoff

    Have the contents of the movie-house snack packages shrunk over the years? I’m betting they have, but I can’t be sure since I’ve never bought the stuff.
    The only thing I have to go on is how much more cotton gets stuffed in OTC pill bottles.

  7. These kinds of deceptive practices (YES they are deceptive and it is intentional) have been going on for many, many years. When Walmart stores went national the products on the shelves “looked” just like the same products you’d been getting elsewhere but consumers were being deceived by packaging and contents. It’s a consumer beware market for anything that is packaged (regardless of the kind of packaging) for retail sales. To most consumers, net weight of their packaged goods don’t mean a damn thing unless there is a similar product sitting right next to it to use as direct comparison, the manufacturers know this to be a general fact and have been reducing the contents in the packaging.

    I’m one of the consumers that actually pays close attention to these kinds of details. I have written many letters and sent many emails to companies about the quantity and quality changes of their products; sometimes I get replies with a huge stack of manufacturer coupons that never expire, but most of the time I hear nothing. Here is just one example: I have used Head & Shoulders shampoo regularly for years, I buy the largest bottle available and I usually get multiple bottles and I always buy well ahead of actually needing more; the container has a very unique shape and one time I purchased a couple of bottles that appeared to be the same size bottle and the same price when I got it home I noticed something “interesting”, the bottle had shrunk by a measurable volume but the bottle was exactly the same shape it looked correct on the shelf in comparison to other products (if I remember correctly it shrunk about 10% by volume) and the contents within that bottle was reduced by more than the 10% change (the net weight was labeled correct – I actually checked it) and yet the retail price of the product had not changed – this was very, very intentional and very, very deceptive. There are hundreds of similar examples of these practices. The choice in today’s economy is to deceive the consumer into thinking that they are getting what they always have and reduce the contents within the container which most people probably won’t notice or shrug it off when they do notice rather than to increase the price which everyone will notice – it’s all about dollar perception and not “raising” the price.

    There is a reason that I will not shop at Walmart. There is a reason the products on their shelves are cheaper than other places. After I noticed the across the board blatant packaging deception at Walmart stores years ago, I’ll never walk in their doors again. They were not putting small businesses out of business because the same products were honestly cheaper than other places, consumers were being deceived and this practice of deception has spread. I’ll support local business over national chains whenever possible.

    As frivolous as it may seem, I hope Stephanie Escobar’s wins the law suit and I hope she wins BIG to send a message to manufacturers to be more honest, but I bet she looses – you know the company did nothing “illegal”, it’s all about buyer beware.

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