Sour Patch Slack Fill Case Dismissed
A New York federal court has dismissed a consumer’s lawsuit alleging Mondelez International sells its Sour Patch Watermelon candy with unpermitted slack fill. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., order entered October 26, 2016). The lead plaintiff had asserted that the box he purchased contained 28 pieces of candy but had enough space for 50 pieces. Additional details about the complaint appear in Issue 609 of this Update.
After finding that the plaintiff did not have standing for an injunction, the court turned to the candy company’s arguments, dismissing its assertion that the accurate net weight released it from liability. Further, the court found it inappropriate to consider at the motion-to-dismiss stage whether a consumer could determine the contents of the package by shaking or squeezing it.
The court was persuaded by Mondelez’s argument that the plaintiffs had failed to state a claim because they did not clarify what premium they paid on the product. “Simply because Plaintiffs here recite the word ‘premium’ multiple times in their Complaint does not make Plaintiffs’ injury any more cognizable,” the court held. “Plaintiffs have not alleged that they paid a higher price for the Candy than they otherwise would have, absent deceptive acts. And Plaintiffs’ pointing out that the Candy is more expensive per ounce than other sweets on the market brings them no closer to stating a claim for injury. Comparing the Candy to Hot Tamales and Junior Mints is the saccharine equivalent of comparing apples with oranges.” Accordingly, the court granted Mondelez’s motion to dismiss the plaintiffs’ claims.
Issue 621
