Lawsuit Accusing Welch Foods of Slack-fill Moves to District Court

A lawsuit filed against Welch Foods, Inc. in California’s Superior Court accusing the company of slack-fill, or leaving an excess of air space in packages, was removed by the defendants to the California Central District Court. Daren Clevenger filed the class-action complaint against the company in June claiming the company used “oversized containers with substantial, nonfunctional, empty space inside them” when packaging its Reduced Sugar Fruit Snacks and its Fruit ‘n Yogurt Snacks. 

The complaint alleged that the actions of Welch Foods breached federal and California laws because it misled consumers to think they were receiving more food, even when the accurate quantity is displayed on the label. The filing specifies that it is not claiming misrepresentation or deceptive practices, but rather unfair and unlawful practices. 

The plaintiff alleged that the two snacks mentioned came in boxes with eight pouches, but were sold in a box of identical size to other Welch’s Fruit Snacks, which reportedly contain 10 pouches of snacks and 33 percent more food. Clevenger said the boxes and packages were “substantially under-filled.” 

The document cites the Federal Food Drug and Cosmetic Act which says “a container that does not allow the consumer to fully view its contents shall be considered to be filled as to be misleading if it contains nonfunctional slack-fill. Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein.” The law says the space is “nonfunctional slack-fill” if it is not there to protect the contents, required for enclosing the contents, due to settling, is part of the presentation, is necessary because of the product, or performs a specific function. Packaging that contains nonfunctional slack-fill is reportedly considered misbranded by the Food and Drug Administration. 

The complaint also alleges the slack-fill violates California’s Fair Packaging and Labeling Act, and that it does not fit any of the exemptions under this law or the federal law. It asks for injunctive relief requiring Welch’s to change their packaging practices and restitution. 

The plaintiff is seeking relief for himself and any others who purchased the two types of Welch’s fruit snacks in California since June 30, 2016. He claims that he and the class lost money or property because of the nonfunctional slack-fill because they assumed they were acquiring more food than was in the package when they decided to make the purchase. 

The plaintiff is represented by Divincenzo Schoenfield Stein and Lanza & Smith PLC. The defendants, including Welch Foods, Inc., and The Promotion In Motion Companies, Inc., are represented by Venable.