Legal Newsline

Monday, July 22, 2019

Class action lawsuit claims Swedish Fish packaging uses 63 percent slack-fill

By Chandra Lye | Feb 9, 2017

BROOKLYN, N.Y. (Legal Newsline) – An unhappy customer has filed a class action lawsuit against an international snack company over allegations that it shortchanged her with the amount of product in its candy packaging.

Tamika Daniel of Brooklyn, New York, has accused Mondelez International of fraud and negligent misrepresentation.

Daniel alleges the company has been selling products with too much slack-fill - or empty space in the packaging.

She is claiming monetary damages after she bought a box of Swedish Fish candies that he alleges had about 63 percent of slack-fill. She claims there was a non-transparent cardboard box that hid the slack fill for the purpose of deceiving customers.

The court documents accuse Mondelez International Inc. of using deceptive or improper business practices. The candy is packaged in a thin cardboard box and can be found at various shops including grocery stores, supermarkets and convenience stores.

The lawsuit states the amount of slack-fill in the Swedish Fish product violates the Federal Food Drug & Cosmetic Act and the Code of Federal Regulations and state laws that prohibit the misbranding of food.

Part of the problem, according to the filing, is that inside the box the candies are inside a plastic pouch. The box is non-transparent so that the slack-fill cannot be seen, the suit states. The lawsuit claims that double packaging the candies is unnecessary.

Measurements of the packaging have found that the box is 6 inches high and the candies inside only fill up 2.25 inches, which leaves 3.75 inches, or 63 percent, slack fill, the suit states.

The court documents indicate that some slack fill may be necessary but the plaintiff deems Mondelez’s as excessive.

The filing compares the Swedish Fish product with other candies, such as Trolli Sour Brite Crawlers, which were found to have 45 percent slack-fill. Dots candy was found to have only 27 percent slack-fill, the suit states.

Class-action lawyer Scott Shaffer of Olshan law firm said this was not a unique case.

“From a manufacturer's point of view, it is serious and these happen a lot,” he told Legal Newsline. “They put a lot of packaging inside the outside package to make it feel more substantial and they weigh those. They count those when they weigh.”

Court documents state that Daniels came to her conclusion after purchasing two Swedish Fish packages in 2016. Initially she believed that the package had been inadequately filled by accident, according to the suit.

“She paid $1.08 for the product on the reasonable assumption that the box was filled to functional capacity. She would not have paid this sum had she known that the box was more than half empty or had the box been proportioned to its actual contents,” the suit states.

The documents claim that the deception deprived her of the benefit of her bargain. 

Shaffer said class-action lawsuits are the best ones for situations like this.

“The class action is a device that was designed so that if people have small problems that aren’t worth bringing the cost of a lawsuit or problems that occur on a frequent basis the same problems can be addressed in the same lawsuit,” he explained. “That is also convenient for the court. It makes it worthwhile for the plaintiff to be able to consolidate her case along with all the other consumer’s cases. It also makes it convenient for the court because the court doesn’t have to face hundreds of identical lawsuits.”

Mondelez produces Chiclets, Trident gum, Oreo cookies, Cadbury, Christie and Nabisco brands among others. According to its website, it is a “global snacking powerhouse” and had net revenues in 2015 around $30 billion. Its products are available in about 165 countries.

Daniel has requested trial by jury and asked for compensatory and punitive damages, interest, restitution, injunctive relief, all legal fees and all other relief the court will grant.

The lawsuit was filed on Jan. 12 in U.S. District Court for the Eastern District of New York.

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U.S. District Court for the Eastern District of New York