Ferrara Candy Co. has agreed to pay $2.5 million to settle a class-action lawsuit alleging the candy manufacturer did not adequately fill the boxes of several of its product brands. 

Plaintiff Thomas Iglesias, of San Francisco, California, filed the complaint in February 2017, alleging Ferrara’s failure to fill 18 products housed in an “opaque cardboard box (including bag-in-a-box products),” like Lemonheads, RedHots, Brach’s and more, were intentionally deceptive to consumers, constitute unjust enrichment and violate consumer protection statutes, according to a motion filed by Judge Vince Chhabria on June 26 in U.S. District Court – Northern District California.

Ferrara filed a motion to dismiss the complaint in May 2017, essentially saying that the U.S. Food and Drug Administration should decide how much empty space is adequate in a candy box, and that it shouldn’t be subject to a legal opinion. The FDA already regulates how much “slack fill,” or empty space, is permitted in product packaging. The motion also stated that Ferrara’s packaging clearly specifies the weight of the product. Ferrara did not respond to an interview request. 

“Reasonable consumers understand, based on life experience, that many food products, including snack food and candy, contain some empty space,” Robert Hawk, an attorney for Hogan Lovells U.S., representing Ferrara, wrote in the motion. “If consumers seek specifics about the actual quantity of candy in Ferrara’s candy boxes, they need look no further than the front or back of the package itself, where standard, legally required disclosures state the product’s net weight and servings per container.” 

The court declined Ferrara’s motion to dismiss the complaint the next month and, in May 2018, expanded the lawsuit to nationwide class-action status. 

Iglesias “is typical of consumers around the country in that they were all exposed to identical product packaging, which is alleged to have been deceptive for identical reasons,” Chhabria wrote in the June motion.  

Those who believe they have purchased a Ferrara candy box or bag that was under-filled can file a claim at www.ferraracandysettlement.com with an administrator the court put in charge of collecting claims. The deadline to file a claim is Sept. 20 and proof of purchase is not required. The matter will be decided on Oct. 25 in the U.S. District Court- Northern District Court. The final settlement amount will be approved then, as will requests for reimbursement for attorney’s fees and court costs. 

Chandra Hatch and Lora Pate also have until Sept. 20 to decide if they would like to be included in Iglesias’ complaint or pursue their separate complaint, currently pending in the U.S. District Court – Northern District of Illinois, which alleges that 13 Ferrara products are intentionally under-filled or slack-filled. Hatch and Pate filed their complaint on March 22, and have alleged that Ferrara is settling Iglesias’ complaint because Iglesias was not seeking a large settlement.  

“Ferrara intends to move to stay the Hatch action, pending approval of this settlement,” Michael Shephard, an attorney from Hogan Lovells U.S., which is representing Ferrara, wrote in an April 20 action. 

Ferrara also faces a separate complaint from a plaintiff in St. Louis, who is likewise alleging the candy manufacturer under-fills its products.

CONTACT: ntepper@wjinc.com