Swedish Fish Candy Maker Faces Class Action Over Underfilled Boxes

The maker of Swedish Fish candy hit a sour note with at least one consumer who has now filed a class action lawsuit against it for underfilling boxes of the sweet red gummy treats.

Mondelez International Inc. is accused of violating California consumer protection laws, committing fraud, and intentionally and negligently misrepresenting their Swedish Fish Candy in a class action lawsuit filed in California federal court on Sept. 3.

Plaintiff Elena Coleman says the company is guilty of using non-functional slack-fill and that thousands of potential Class Members lost money because of this practice.

Coleman is asking for a jury trial and ultimately wants the court to stop Mondelez from shorting its boxes of Swedish Fish candy and order the company to pay damages for duping its customers.

Swedish Fish are chewy, gummy candies originated by Malaco, a confectionery company in Sweden, and are known for their fish shape and unique Lingonberry flavor. Now produced by Mondelez, the candies come in a variety of flavors and sizes and are “one of the most popular theater box candy products in the world,” according to the class action lawsuit.

Unfortunately, the boxes of Swedish Fish candy are allegedly underfilled by which the company “dupes unsuspecting consumers across America to pay premium prices for empty space.”

“To increase profits at the expense of consumers and fair competition, [Mondelez] pioneered a scheme to deceptively sell all flavors, varieties, and sizes of Swedish Fish sold in opaque containers […] in oversized boxes that do not reasonably inform consumers that they are more than half empty,” the Swedish Fish candy class action lawsuit says.

Coleman claims that the Swedish Fish candy box packaging is opaque and lacks any indication the amount of candy inside is less than the box’s capacity. There is no fill line and no wording to inform customers of the number of candies inside the box, she says. That is intentional, according to the Swedish Fish candy class action lawsuit, and meant “to deceive consumers into purchasing the (candy) over its competitors’ products.”

“The size of each box leads the reasonable consumer to believe he or she is purchasing a box full of candy product when, in reality, what he or she actually receives is about 58% less than what is represented by the size of the box,” the Swedish Fish slack fill class action lawsuit says.

Slack-fill is the term for the difference between the capacity of a container and the volume of product put in it. When it comes to some food products, slack-fill is necessary to protect and preserve the items in the package.

Potato chips are a prime example. Because they are somewhat fragile, they would be crushed and broken in bags that had no slack-fill to give them air cushioning.

Swedish Fish candy, on the other hand, are not fragile and are actually more prone to damage in packaging that is underfilled, giving the products space to collide with each other and the box walls, the class action lawsuit says.

Nonfunctional slack-fill is empty space in a package “for illegitimate or unlawful reasons,” and that is what Coleman’s suit says Mondelez is in the practice of using.

The practice, which Coleman refers to as a “scheme” in her complaint, not only harms consumers but also hurts Swedish Fish’s competitors “who have implemented labeling changes designed to alert consumers to the true amount of product in each box.”

Coleman points out in her class action lawsuit that several other candy companies have changed their packaging to more plainly report the amount of product inside.

Among them are Tootsie Roll Industries Inc. which revised the packaging for Junior Mints and Sugar Babies by adding an actual size depiction, the words “actual size” and a candy count to avoid any confusion about the amount of candies inside.

Just Born Inc., maker of Hot Tamales and Mike and Ike candies, and Ferrara Candy Company have reportedly made changes to their packaging to be truthful about the amount inside, the class action lawsuit says.

Just Born was only recently prompted to change its packaging after it too was hit with a class action lawsuit over underfilling its boxes of Hot Tamale and Mike and Ike candies. The company agreed in August to settle the case for $3.3 million and pledged to clearly indicate the volume in its boxes of candy.

Ferrara also agreed to change the packaging of its Jujyfruits, Now & Later and other candies after a class action lawsuit was filed against it for underfilling boxes. The company agreed to settle that class action lawsuit in May for $2.5 million and a promise to both change to more accurate packaging and to fill boxes of candy to at least 70%.

“While other similar lawsuits against [its] competitors have all but curbed this unfair business practice, [Mondelez] remains one of the last holdouts,” the Swedish Fish candy class action says, “ignoring the industry trend towards transparency in the hopes of obtaining an unfair competitive advantage in the marketplace.”

Mondelez isn’t the only major candy manufacturer facing class action litigation over slack-fill. Nestlé is defending itself against a class action over its packaging of theater candy boxes of Raisinets, Nerds, Sno Caps, SweeTarts and others.

Have you purchased a box of Swedish Fish candy and found it was underfilled? Or have you purchased any other packaged food item and found there was far less inside than you expected based on the container? Tell us about it in the comment section below.

Plaintiff and the proposed Class Members are represented by Ryan J. Clarkson, Matthew T. Theriault, and Zachary T. Chrzan of Clarkson Law Firm PC.

The Swedish Fish Candy Class Action Lawsuit is Elena Coleman, et al. v. Mondelez International Inc., Case No. 2:20-cv-08100-FMO-AFM, in the U.S. District Court for the Central District of California.

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