Class Action: Welch’s Reduced Sugar, Fruit ‘n Yogurt Fruit Snacks Boxes Filled with ‘Significant Empty Space’ [UPDATE]

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A proposed class action claims boxes of Welch’s Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt Snacks contain a significant amount of empty space, known as slack-fill, and are therefore misbranded and sold illegally.

According to the suit, while defendant Welch Foods Inc. includes 10 individual packages of fruit snacks in boxes of its non-premium varieties, identically sized boxes of the Reduced Sugar and Fruit ‘n Yogurt fruit snack varieties contain only eight pouches. The lawsuit alleges, therefore, that the boxes unnecessarily contain two fewer pouches than they can fit and are instead filled with a substantial amount of non-functional empty space, unbeknownst to consumers.

“The practice of using oversized containers with substantial, nonfunctional, empty space inside them is called ‘slack-fill’ and is illegal under California and Federal law,” the complaint explains, adding that by violating both federal and state slack-fill laws, the products are misbranded and cannot legally be sold.

Per the lawsuit, Welch Foods – a cooperative that sells grape juices, jams, fruit snacks and jellies –  packages its fruit snack products in opaque, colored boxes, the contents of which are not visible to consumers from the outside. As such, the case alleges, consumers are unaware that the Welch’s Reduced Sugar and Fruit ‘n Yogurt snacks are “substantially under-filled” and contain a “substantial amount of empty space,” i.e. non-functional slack-fill.

As compared to other varieties of Welch’s fruit snack products that contain 10 pouches and weigh 9 oz, boxes of the Reduced Sugar and Fruit ‘n Yogurt snacks—which contain eight pouches and weigh 6.4 oz—are at least 20-percent under-filled by quantity and 30-percent under-filled by weight, the suit charges.

Further, Welch’s fruit snacks sold at Costco are packaged in a cardboard box containing 90 pouches “with significant empty space,” the case alleges, adding that the box can hold at least 110 pouches.

The lawsuit argues that the defendant’s products fail to meet any exemptions under state and federal slack-fill laws given the extra space in the boxes does not provide necessary protection; is not required during the packaging process; is not caused by settling during shipping and handling; and is not needed for a specific function such as food preparation. Moreover, the fruit snacks’ packaging itself lacks independent value from the food it contains and is not necessary to prevent pilfering or accommodate required food labeling, the suit adds.

“There is no lawful reason for the substantial non-functional slack-fill contained in Defendant’s packaging of its Reduced Sugar Fruit Snacks or its Fruit ‘n Yogurt Snacks,” the complaint scathes. “Defendant is overcharging reasonable consumers because its packaging is substantially larger than necessary to contain the eight pouches included per box.”

The first amended complaint, which was recently removed to California’s Central District Court, looks to cover anyone in California who, between June 30, 2016 and the date a class is certified, bought Welch’s Reduced Sugar Fruit Snacks, Welch’s Fruit ‘n Yogurt Snacks or any other Welch’s brand fruit snacks containing fewer pouches per box than the defendant’s regular fruit snack varieties sold in the same size box or Costco fruit snacks sold in the same size box.

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