D.A. Gives Milk Duds Maker Something Legal to Chew On

Call it the Missing Milk Duds Caper. Or how about the Case of the Withheld Whoppers?

In the second such crackdown in barely a week, the Ventura County district attorney’s office filed suit Thursday to ensure that consumers get what they pay for: specifically, more candy than air in cartons of Milk Duds, and boxes of Whoppers worthy of the name.

Faster than you could chew one of the offending confections, the case was resolved with an agreement by Leaf Inc.--manufacturer of Milk Duds and Whoppers Malted Milk Balls--to stop selling half-empty boxes.

“Consumers have a right to expect that packages will be filled with product and not with excessive empty space,” Dist. Atty. Michael D. Bradbury said in a news release, which also announced the issuance of a permanent injunction in Ventura County Superior Court.

The order, signed Thursday by Judge Steven Z. Perren, requires Leaf to make sure that future containers are chock full of chocolate.

As part of the agreement, Leaf will pay $42,845 in civil penalties and costs, which will be split by Ventura County and Santa Cruz County, where the case originated.

Last week, prosecutors filed a similar suit against a Washington state food manufacturer, complaining that it was providing fewer slices of cheese than its packaging indicated. And in 1991, they obtained an injunction against Lucky Stores, barring the market from selling “cream pies” that lacked cream or “crab salad” that contained no crab.

“A lot of these things are not a big deal to an individual consumer in one transaction,” said Deputy Dist. Atty. Michael D. Schwartz, who handled the Leaf case. “But when you multiply it by millions of consumers, it adds up.”

The prosecutor’s desk was covered with various-sized boxes of Milk Duds and Whoppers, some opened for inspection by reporters. A hand-printed sign warned: “Evidence--Do Not Eat.”

Schwartz said Leaf correctly listed the net weight on its candy boxes. But the company violated a state law that forbids packaging that has more empty space--called “slack”--than is required by the manufacturing process, said Bob Berumen, senior inspector for the Ventura County Division of Weights and Measures.

“We found these very popular Milk Duds . . . were slack-filled in the extreme,” Berumen said. “They would have this huge box and not much product in it.”

The 5.5-ounce box of Milk Duds was half empty, Berumen said. A 0.6-ounce size--sold from ice cream trucks--was 43% slack. Boxes sold for consumption in darkened movie theaters had fewer Milk Duds than similar-size containers sold at markets, Berumen said.

“It’s incredibly deceptive to sell these big boxes,” he said. “And it’s bad for the environment, using up all that paper and box for nothing.”

He said the maximum allowable percentage of slack space varies with the product and manufacturing considerations. However, he said, “more than 25% starts to be suspect. You expect to find product a quarter of the way down.”

Jane Diederichs, spokeswoman for the Illinois-based Leaf Inc., said the extra space has been necessary because the company’s plants sometimes produce different-sized candies. Big boxes are necessary to accommodate such production vagaries, she said.

“Some Milk Duds are bigger than others,” Diederichs said. When the plant refurbishing is completed in April, she said, the candies will be a more uniform size. And consumers have always received the net weight they paid for, she said.

“It just seemed like a lot of empty space, at least to people in Ventura County,” she said. “I don’t think this has come up in other jurisdictions.”

Some of the boxes are being redesigned as part of the agreement, Diederichs said.

Bradbury said such cases help pay for the district attorney’s con sumer protection unit.

“This division pays for itself,” he said. “The bad guys pay for protection of the good guys.”