CVS Class Action Alleges Red Fish Candy Bags Half Empty

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A class action lawsuit filed against CVS Pharmacy Inc. asserts that the pharmacy chain under-fills bags of their Gold Emblem Red Fish candy.

The CVS class action lawsuit argues that the amount of “slack-fill” in the red fish candy bags is unnecessary and that the candy’s packaging is misleading.

Plaintiff Cindy Jocelyn challenges CVS’ practice of under-filling its red fish candy bags and using misleading packaging to hide the under-filling.

On behalf of all similarly affected consumers, Jocelyn seeks damages sustained as a result of the company’s alleged deception and violations of New York general business law and nation-wide common law.

According to the CVS class action lawsuit, the FDA allows for a some “slack-fill,” or air, to be present in food packaging, so long as it is functional. Slack-fill is determined to be functional if it serves one or more of the following purposes:

• Protection of the contents of the package;
• The requirements of the machines used for enclosing the contents in such package;
• Unavoidable product settling during shipping and handling;
• The need for the package to perform a specific function, where such function is inherent to the nature of the food and is clearly communicated to consumers;
• The fact that the product consists of a food packaged in a reusable container where the nature is part of the presentation [and value] of the food;
• Inability to increase level of fill or to further reduce the size of the package.

Slack-fill that exists in excess of what is necessary to perform these functions is considered “non-functional” slack-fill.

The CVS red fish candy class action lawsuit argues that a smaller amount of slack-fill in a comparable CVS product proves that the amount of slack-fill in the Gold Emblem Red Fish candy bags is non-functional.

CVS’ Gold Emblem Assorted Fish candy bag has the same dimensions as their red fish bag, but while the assorted fish bag only contains two inches of empty space above the candy, the red fish bag contains three inches of empty space. Therefore, Jocelyn argues that the amount of slack-fill in the assorted fish candy bag proves that some of the slack-fill in the red fish bag is non-functional.

Additionally, Jocelyn claims that the red fish candy bag is an opaque red, apart from a 1.25 inch-tall transparent window at the bottom of the bag. The candy inside fills 2.5 inches of the bag’s height. The CVS red fish class action lawsuit asserts that, “the window is insufficient to allow Plaintiff and the Class to discover the amount of candy therein,” because only some of the candy is visible.

According to the CVS red fish class action lawsuit, Jocelyn was financially injured by CVS because she “did not receive the quantity [of candy] that she paid for and was promised.”

The CVS class action lawsuit claims that Jocelyn is at continued risk of injury by CVS because “she can no longer rely on [the company’s] packaging, even if nonfunctional slack-fill is corrected,” and may hesitate to purchase CVS’ products in the future.

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

The CVS Pharmacy Slack-Fill Candy Class Action Lawsuit is Cindy Jocelyn v. CVS Pharmacy Inc., Case No. 1:17-cv-09029, in the U.S. District Court for the Southern District of New York.