Sour Patch Kids Maker Says Advil Ruling is Grounds for Dismissal

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The maker of Sour Patch Kids candy is asking a federal court to toss a nationwide class action lawsuit that alleges the treat’s packaging “misleads consumers into believing that they were receiving more products than they actually were.”

In the Oct. 20 letter addressed to U.S. District Court Judge Colleen McMahon, Mondelez International Inc., the maker of Sour Patch Kids, argued that a recent dismissal of a putative class action lawsuit (Fermin v. Pfizer) concerning Pfizer’s packaging of Advil containers bears directly on the Sour Patch Kids case.

Citing the Advil ruling that because the pill-counts were clearly stated on the label and that a reasonable consumer would rely on this stated pill-count, Mondelez argues that the Sour Patch underfilled packaging claims are implausible.

“As explained in defendants’ briefs, the packaging discloses the net weight and the exact number of the iconic Sour Patch Kids candies in each box,” Mondelez said. “Further, anyone who picks up a box of Sour Patch Kids will immediately hear the rustling sound and feel the movement of the candies within the box, alerting them that there is some empty space in the box and that it is not filled literally to the brim.”

Plaintiff Jose Izquierdo brought the complaint against Mondelez in June, saying that when he purchased Sour Patch Watermelon candy at an AMC movie theater in New York, he “relied on the size of the thin cardboard box to believe that the entire volume of the packaging of the [Sour Patch Kids box] would be filled to capacity.”

Instead, the candy was packaged in a transparent plastic pouch that was inside a non-transparent cardboard box that allegedly concealed the actual amount of product the box contained, otherwise known as slack-fill.

Izquierdo asserts that this style of slack-fill 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.

Just one day after Mondelez’s counsel submitted the letter citing the Advil case decision, Izquierdo challenged another supplemental authority letter in an attempt to dismiss the Sour Patch Kids complaint.

This first letter called for dismissal of the Sour Patch Kids class action by pointing to a California federal court’s decision to toss a similar lawsuit against Mondelez involving allegations of slack-fill in its Nabisco cookie Go-Paks.

But Izquierdo argued back that last month’s letter and other motions filed by Mondelez were “desperate attacks” and ineffectively draw on inapplicable case law, giving merit to his claims that the company purposely under-fills its Sour Patch Kids products.

“In sum, defendant’s arguments are backed by one recent decision by one court. By contrast, plaintiffs’ arguments are backed by the legislative intent of Congress and guidance from the FDA,” the letter said. “Accordingly, these authorities have far more weight.”

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-04697, in the U.S. District Court for the Southern District of New York.