Werther’s Original sugar-free candy full of hot air, lawsuit claims

By: Jorge Fitz-Gibbon

The makers of Werther’s Original creamy caramels “purposefully” short-change consumers by under-filling the candy’s packages, a Westchester County resident is claiming in federal court.

The lawsuit comes four months after a similar claim against Junior Mints.

In the latest lawsuit, Jeffrey Kpakpoe-Awei said his package of Werther’s sugar-free candy was filled with 60 percent air — known as “slack-fill” —  and that the actual chewy treats occupied just 2 inches of the 7.5-inch-tall package.

The lawsuit, which names Storck USA, the candy’s manufacturer, said even Werther’s non-sugar-free packages have significantly more candy than the sugar-free brand.

“While some of defendant’s slack-fill may have functional justifications related to packaging requirements or the effects of settling, defendant’s total slack-fill far exceeds the amount necessary, and almost all of the slack-fill is therefore nonfunctional,” Kpakpoe-Awei said in the lawsuit.

“Defendant cannot plausibly argue that it could not fit more candy in the product bag because defendant’s own product shows that it can fit nearly twice as much candy, in a substantially similar bag,” he said.

Officials at Storck USA did not return calls seeking comment.

Candy manufacturers typically include slack-fill as a means to keep their product from being bruised or damaged, and federal regulations require that the weight of the product be listed on the packages.

However, similar lawsuits have become increasingly common.

“These ‘slack-fill’ lawsuits have nothing to do with consumer protection and everything to do with enriching trial lawyers,” Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, said Friday in an email to The Journal News/lohud.com. “The lawyers look forward to getting a fat payday while the class of consumers often walk away with nothing, except a higher cost of goods.”

C.K. Lee, Kpakpoe-Awei’s attorney, did not return calls, and Kpakpoe-Awei could not be reached for comment.

Claims familiar

Lee is also the attorney for three other plaintiffs in a separate federal candy case.

In a suit filed last year against Tootsie Roll Industries, Biola Daniel, Abel Duran and Trekeela Perkins accuse the company of misleading them by putting insufficient candy in boxes of Junior Mints.

In the latest lawsuit, filed Feb. 7, Lee maintains that Werther’s non-transparent packages prevent consumers from knowing the contents of the package before they pay for it.

The complaint also claims that the amount of slack fill in the sugar-free Werther’s bag is in excess of other manufacturer’s products, not just other Werther’s packages.

“The comparison is between the same kind of products in the same kind of packaging that is enclosed in the same way by the same kind of technology,” the suit said. “And yet defendant was able to package its candy in a way that leaves consumers with a more accurate sense of how much food they are actually purchasing.”

And even if the weight of the candy is listed on the package, the lawsuit claims that consumers are nonetheless being deceived.