Swedish Fish Class Action Says Candy Boxes Are Mostly Slack-Fill

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A class action lawsuit brought by a New York candy buyer alleges the makers of Swedish Fish candy “slack-fill” packages of its product.

Plaintiff Tamika Daniel says the confectionary company Mondelez International Inc. intentionally packages its Swedish Fish candy products with non-functional slack-fill (the empty space in product packaging) to mislead consumers into believing they are receiving more candy than they actually are.

Swedish Fish candy is packaged in a transparent plastic pouch inside a non-transparent thin cardboard box in numerous retail and online outlets throughout the U.S.

According to Daniel, the size of the box in comparison to the volume of the Swedish Fish candy contained inside makes it appear that consumers are buying more than what is actually being sold.

When Daniel purchased Swedish Fish candy in 2016 in Long Island, she noticed the slack-fill but assumed that the particular box she purchased had been inadequately filled by accident.

When she again purchased a box of Swedish Fish candy for $1.08 at a Brooklyn Target store, she said it was then she realized that the slack-fill was there by design.

In fact, Daniel claims that she and other candy consumers reasonably rely on the packaging representations of quantity and volume when purchasing Swedish Fish but were misled by the deceptive packaging.

According to proposed consumer class lawsuit, a box of Swedish Fish is almost exactly six inches tall. But the candies inside reach only 2.25 inches, leaving 3.75 inches of empty space, or 63 percent slack-fill.

While some of the Swedish Fish packaging’s slack-fill may have functional justifications related to packaging requirements, Daniel’s claim contends the total slack-fill exceeds the amount necessary for this.

In comparison, the lawsuit points out that a box of Mondelez’s Trolli Sour Brite Crawlers minis is exactly the same height as a box of Swedish Fish, yet the candy in the Crawlers products reaches 3.25 inches, leaving only 45 percent slack-fill.

“[Mondelez] promised Plaintiff Daniel a full box of candy for $1.08, but it only delivered less than half a box, depriving her of the benefit of her bargain,” the lawsuit states.

Slack-fill is the difference between the actual capacity of a container and the volume of the product contained within it.

While the U.S. Food and Drug Administration (FDA) allows slack-fill, it prohibits companies from “misleading” packaging where consumers are not able to fully view what is contained in the packaging.

Specifically, the FDA terms non-functional slack-fill as any “slack-fill in excess of that required to achieve functional purposes such as protection of the contents of the package or the inability to increase level of fill or to further reduce the size of the package.”

“Thus the possibility that some portion of the slack-fill in Defendant’s Products may be justified as functional based on [FDA exemptions], it does not justify slack-fill that is in excess of the required to serve a legitimate purpose …Such slack-fill serves no purpose other than to mislead consumers about the quantity of food that are actually purchasing,” the lawsuit states.

In her 26-page complaint, Daniel is bringing forth causes of action that Mondelez violated the Federal Food Drug & Cosmetic Act (FDCA) and various New York consumer protection laws by misleading consumers as to the actual amount of Swedish Fish contained in the candy boxes.

She is seeking to represent a Class of all New York residents who purchased Mondelez’s Swedish Fish candy products and is asking for compensatory and punitive damages in amounts to be determined by the Court or jury.

She is also requesting an injunctive order requiring Mondelez to repackage its Swedish Fish products without non-functional slack-fill.

This isn’t the first time Mondelez has been accused of “slack-filling” its candy products.

In June 2016, the company was hit with a nationwide class action lawsuit over similar allegations that it slack-fills its boxes of Sour Patch Kids candy.

Mondelez has attempted to dismiss the case twice, most recently in October, citing its’ slack-fill falls within FDA guidelines. The lawsuit is currently pending in New York federal court.

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

The Swedish Fish Slack-Fill Packaging Class Action Lawsuit is Tamika Daniel v. Mondelez International Inc., Case No. 2:17-cv-00174, in the U.S. District Court for the Eastern District of New York.