Werther’s Caramels Class Action Says Bags are Purposely Underfilled

A New York man says consumers are being duped into buying bags of Werther’s Originals sugar-free caramels that are more than half-empty.

Plaintiff Jeffrey Kpakpoe-Awei says that late last December, he bought a 2.75-ounce bag of Werther’s Originals Sugar Free Caramel candies, only to find that the bag contained around 60 percent empty space.

The opaque bag prevented him from seeing just how much product was contained inside, he says.

He is now suing defendant Storck USA LP, the makers of Werther’s Originals candy, for allegedly using an oversized package to trick consumers into thinking they’re getting more product than the bag actually contains.

For comparison, Kpakpoe-Awei says, a 5-ounce bag of Werther’s Originals Chewy Caramels contains only about one-third empty space – proving that Storck could package its sugar-free caramels with less empty space, but simply chooses not to.

Empty space inside a product’s packaging is known in the trade as “slack-fill.” According to guidance by the FDA, slack-fill can serve any of a list of functional purposes, such as to protect the contents or to accommodate the equipment used to package the product.

The same FDA guidance, as Kpakpoe-Awei cites in his Werther’s Originals class action lawsuit, says extra space in excess of what’s necessary to serve one of those purposes is non-functional slack-fill that runs the risk of deceiving consumers.

Kpakpoe-Awei argues the slack-fill used to package Werther’s Originals sugar free caramels serves no legitimate purpose but is instead intended to mislead consumers. None of the FDA’s safe harbor exceptions applies in the case of these candies, he argues, making the slack-fill in Werther’s Originals sugar free caramels non-functional and therefore deceptive.

Kpakpoe-Awei further claims that a consumer shouldn’t have to shake or otherwise manipulate a package to determine its contents. He cites guidance published by the FDA that says windows on the package that don’t allow consumers to see the contents without physically handling the package aren’t adequate to prevent them from being misled as to the contents of the package.

Applying that guidance to Werther’s Originals windowless package, the plaintiff argues that “the same basic principle applies: the possibility that manipulating a package might yield additional insight into its contents does not exculpate non-functional slack-fill (just as accurate net weight disclosures do not).”

Kpakpoe-Awei proposes to bring his claims on behalf of a plaintiff Class that would include all U.S. persons who purchased a 2.75-ounce bag of Werther’s Originals Sugar Free Chew Caramels within the applicable statutory limitations period.

He seeks awards of statutory, compensatory and other damages, restitution and disgorgement, and reimbursement of court costs and attorneys’ fees, with pre- and post-judgment interest on all amounts outstanding. He is also asking the court to order Storck to cease the allegedly misleading packaging and conduct a corrective advertising campaign.

Kpakpoe-Awei is represented by attorneys C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The Werther’s Original Underfilled Packaging Class Action Lawsuit is Kpakpoe-Awei v. Storck USA LP, Case No. 7:18-cv-01086, in the U.S. District Court for the Southern District of New York.

UPDATE: On June 8, 2018, a settlement has been reached in a class action lawsuit alleging packages of Werther’s candies contain about 60 percent empty space.