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CVS Pharmacy Underfilled Red Fish Candy Bags Class Action

CVS Gold Emblem Red Fish Candy Bag

Does CVS Pharmacy underfill its 5.5 oz. bags of Gold Emblem red fish candy? According to the complaint for this class action, it does, and the amount of slack fill is considerable.

The Nationwide Class for this action is all persons or entities in the US who made retail purchases of the products during the applicable limitations period. In the alternative, a New York State Subclass is proposed.

The federal Food Drug & Cosmetic Act (FDCA) and the laws of all fifty states and the District of Columbia require that containers not be made, formed, or filled so as to be misleading, but the complaint for this class action alleges that the 5.5 oz. bags of red fish candy, which are mostly non-transparent, are severely underfilled, so that consumers believe they’re getting more candy than they are.

The FDCA permits slack fill if it’s functional, or there for a reason. The law cites six instances where slack fill is permissible:

  • Protection of the contents
  • The requirements of machines used for enclosing the contents
  • Unavoidable product settling during shipping and handling
  • The need for packaging to perform a function, such as where packaging plays a role in the preparation or consumption of a food
  • When the food is packaged in a reusable container that is part of the value of the product
  • Inability to increase the fill level or reduce the size of the product, such as when a certain size is needed for required labeling

None of these instances apply to the red fish candy, the complaint alleges, and it offers and interesting bit of evidence: CVS’s own Gold Emblem assorted fish candy. The two bags are the same size, being roughly 6.5 inches tall, with a one-inch sealed portion at the top and approximately 5.5 inches of vertical capacity. In the case of the red fish candy, the complaint alleges that the candy fills only the bottom 2.5 inches of the bag, with 3 vertical inches of empty space above it; the in the case of the assorted fish, it alleges, the candy fills roughly 3.5 inches of the bag, leaving only about two inches of slack fill.

Photographs included in the complaint with rulers to mark the respective fill levels.

According to the complaint, this means that the red fish bag is only 45% (or less than half) filled, with 55% empty space, while the assorted fish bag is 64% filled, with only 36% empty space. The complaint thus alleges that it would certainly be possible for the red fish bag to be better filled. 

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