Sour Patch Candy Maker Seeks Dismissal of Slack-Fill Class Action

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Candy maker Mondelēz International is seeking dismissal of a consumer class action lawsuit that accuses the company of underfilling boxes of Sour Patch Watermelon candy.

In its motion for dismissal, Mondelēz argues 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.

They challenge allegations by plaintiff Jose Izquierdo, who says the empty space inside the opaque box deceives consumers into thinking they’re getting more candy than is actually inside the box.

Mondelēz argues that under FDA guidelines, slack-fill that serves any of a number of useful purposes is permissible; only nonfunctional slack-fill is prohibited.

The company says the slack-fill within Sour Patch boxes accommodates the way the candies naturally settle inside the box and prevents them from sticking together.

The extra space also allows the box to stand upright for display, without any bulging that could tip it over, the company claims.

Mondelēz also says the slack-fill allows the box to be sealed shut without glue seeping into the inner plastic bag that contains the Sour Patch candy.

In Izquierdo’s Sour Patch class action lawsuit, he claims that the opaque packaging prevents consumers from seeing how little product is inside.

Mondelēz responds to that accusation by arguing that consumers can gauge the contents of the box by shaking or squeezing it.

The labeling on the box also states the net weight of the product inside, the company claims.

Raising more technical arguments, the company says Izquierdo’s claims are preempted by the federal Nutrition Labeling and Education Act, which allegedly preempts state law requirements that are not identical to those in federal law.

Defendants also say Izquierdo fails to plead his fraud-based claims with the specific allegations required by court rules.

They argue that Izquierdo lacks standing to seek injunctive relief, that his claim for negligent misrepresentation is barred by the economic loss doctrine, and that his claim for unjust enrichment is duplicative of his other tort claims.

In Izquierdo’s June 2016 Sour Patch class action lawsuit, he claims he bought a 3.5-ounce box of Sour Patch Watermelon candy at a New York movie theater.

He says he was disappointed to find only 28 pieces of candy inside the box, which he claims was large enough to accommodate at least 50 pieces.

The plaintiff argues that because the box contained only about 44 percent of its capacity, he didn’t get the full value of the $4.29 he paid for that Sour Patch candy at the movie theater.

He claims this slack-fill serves no purpose other than to deceive the consumer.

Izquierdo’s Sour Patch class action lawsuit raises claims under New York’s Deceptive Acts or Practices law and various common law claims. He seeks to represent a nationwide plaintiff Class consisting of all persons who purchased Sour Patch Watermelon candies.

Izquierdo is represented by attorneys C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Sour Patch Slack-Fill Class Action Lawsuit is Izquierdo v. Mondelez International, et al., Case No. 1:16-cv-04697, in the U.S. District Court for the Southern District of New York.

UPDATE: 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.