Mondelēz urges NY judge to dismiss Sour Patch Kids slack-fill suit

By Douglas Yu

- Last updated on GMT

Mondelēz contends that slack-fill allows Sour Patch Kids box to stand on shelf. Photo:Flickr/Mike Mozart
Mondelēz contends that slack-fill allows Sour Patch Kids box to stand on shelf. Photo:Flickr/Mike Mozart

Related tags Pleading Plaintiff Mondelez

Mondelēz seeks to strike down a nationwide class action lawsuit that alleges the firm's Sour Patch Kids box “misleads consumers into believing that they were receiving more products that they actually were”.

The lawsuit claimant, Jose Izquierdo, ​says 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,” ​according to court documents.

This site previously reported Perfetti Van Melle is defending a lawsuit accusing it of deceiving consumers by slack-filling Mentos chewing gum containers​. ​The company says its containers are designed to “prevent crushing during transportation.”

Dean Panos, an attorney representing Mondelēz, said he was not able to comment on the ongoing matter.

Slack-fill has its own functions

The Oreo cookie manufacturer filed its defense on Monday, following a slew of similar class action allegations across the US recently, saying FDA rules that slack-fill is “not deceptive or impermissible”.

“It also serves a functional purpose of allowing the box to stand and be displayed a movie theater [where plaintiff purchased his own Sour Patch Kids] concession stand or a store shelf,”​ it said in court documents.

SP Pile
Source: United States District Court Southern District of New York

Mondelēz further contended that the packaging expressly discloses the net weight of the product and even the quantity of candy contained in it.

“Plaintiff cannot reply on willful blindness to allege that he was deceived,” ​said the firm.

Striking nationwide class allegations

Mondelēz also said the claimant also does not have standing to seek injunctive relief or damages under New York General Business Law Section 349, because it applies only to conduct that occurs within the state of New York.

“New York’s choice-of-law rules prevent plaintiff from pursuing his remaining common law claims on behalf of a nationwide class,” ​it said.

IP lawyer: Mondelēz may take precautionary steps

Chicago-based attorney Ryan Kaiser (Talati & Upadhye), who’s specializes in FDA and IP law, told ConfectioneryNews that this case reminded him of a recent decision in which Starbucks​ successfully kicked a complaint alleging it put too much ice in its “iced coffee”​ drinks, thereby deceiving consumers into thinking they were getting more beverage. 

“While there are parallels between the two cases, the Starbucks case was not a slack-fill case,”​ he said. “The Mondelēz case also differs in that Starbucks’ cups were transparent, and consumers had the option of ordering without ice.”

“Mondelēz makes good points about the accurate labeling of net weight on the package, and the fact that consumers can feel the contents through the outer box.  I know of decisions in different jurisdictions that have gone both ways on those factors, but Mondelēz appears to have cited favorable authority from courts within New York,”​ Kaiser added.

“Going forward, we may start seeing precautionary steps from Mondelēz and others in the space to mitigate risk of these types of suits, such as adding a fill line or a warning statement about product settling.”


United States District Court Southern District of New York

Jose Izquierdo, John Does 1-100 on behalf of themselves and others similarly situated v Mondelēz International, Mondelēz Global

Case No: 1:16-cv-04697-CM

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