Sour Patch Class Action Says Candy Packaging Is Under-Filled

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Mondelez International Inc. has been hit with a class action lawsuit alleging its packages of Sour Patch Watermelon candy are under-filled.

According to the Sour Patch Kids class action lawsuit, plaintiff Jose Izquierdo paid $4.29 for a package of Sour Patch Watermelon candy at an AMC movie theater in New York.

The candy was packaged in a transparent plastic pouch that was inside a non-transparent cardboard box that allegedly concealed the amount of product the box contained.

Izquierdo asserts that this style of packaging is deceptive and designed to disguise the fact that there is excessive empty space within the box.

According to the Sour Patch Kids class action lawsuit, this empty space amounts to non-functional slack-fill that is prohibited by the Federal Food Drug and Cosmetic Act (FDCA).

The FDCA states that a food product can be considered misbranded if it is packaged in an opaque container that contains empty space that serves no function, such as protecting the product from damage.

The Sour Patch Watermelon class action lawsuit states that the non-transparent box has the capacity to hold at least 50 pieces of candy.

However, the 3.5-ounce package of Sour Patch Watermelon reportedly contains only 28 pieces of candy, or 56 percent of the container’s actual capacity. Based on this calculation, the Sour Patch Watermelon package contains non-functional slack-fill amounting to 44 percent of its actual capacity.

The Sour Patch Watermelon class action lawsuit alleges that Mondelez purposely chooses the oversize packaging to maximize the product’s shelf presence, helping it stand out from competing candy products.

Izquierdo also claims that Mondelez intentionally chose to package the candy in a non-transparent cardboard box to conceal the slack-filled space and give consumers the impression that the box contains significantly more candy.

Consumers are therefore unable to see the empty space in the container until after they have made the purchase and opened the box of candy.

“Defendant has deceived Plaintiffs and other consumers nationwide by mischaracterizing the volume of their Product,” the Sour Patch slack-fill class action lawsuit alleges. “Defendant has been unjustly enriched as a result of their conduct. Through these unfair and deceptive practices, Defendant has collected millions of dollars from the sale of its Product that it would not have otherwise earned.”

Even though the Sour Patch Watermelon packaging indicates the weight of the candy contents, the slack-fill class action lawsuit asserts that this label does not prevent consumers from being misled by the product’s oversize packaging.

The Sour Patch class action lawsuit asserts violations of New York’s Deceptive Acts or Practices Law, negligent misrepresentation, common law fraud and unjust enrichment. Izquierdo seeks an injunction and damages.

Izquierdo seeks to represent a nationwide Class of consumers who purchased Sour Patch Watermelon. He also seeks to represent a subclass of New York residents.

The plaintiffs are represented by C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Sour Patch Slack-Fill Class Action Lawsuit is Jose Izquierdo, et al. v. Mondelez International Inc., Case No. 1:16-cv-04947, in the U.S. District Court for the Southern District of New York.

UPDATE: On Aug. 29, 2016, in its motion for dismissal Mondelēz argued that the empty space inside Sour Patch boxes, known in the trade as “slack-fill,” could not deceive a reasonable consumer and serves several purposes that allow it to fall clearly within FDA guidelines.

UPDATE 2: On Oct. 20, 2016, the maker of Sour Patch Kids candy asked a federal court to toss a nationwide class action lawsuit citing a recent ruling (Fermin v. Pfizer) that because the Advil pill-counts were clearly stated on the label, a reasonable consumer would rely on this stated pill-count.