We reported on three substantively identical class action lawsuits filed in district courts in Illinois that allege products containing vegetable oils in place of dairy fats (i.e., butter and/or milk) are falsely and misleadingly described as “fudge.”  The lawsuits, which are all filed by Sheehan & Associates, P.C., target Kellogg Sales Company’s “Frosted Chocolate Fudge Pop-Tarts,” Bimbo Bakeries USA, Inc.’s “Chocolate Fudge Iced Cake,” and the Hershey Company’s “Hot Fudge.”  Fudge is not the subject of a formal standard of identity under FDA regulations.

On June 2, 2022, the claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), as well as claims of breach of warranty, negligent misrepresentation, fraud, and unjust enrichment against Kellogg were dismissed.  The judge found that the lead plaintiff failed to back the assertion that an average consumer would expect a fudge ingredient to contain milk fat.  While the plaintiff provided some evidence that credible third parties believe that milkfat is the central component of fudge, Molly Mills, an authority put forward to support the plaintiff’s interpretation, actually included numerous recipes that do not include milkfat in her book of fudge recipes.  While the plaintiff was granted 14 days to amend the complaint, the judge noted that in a similar, heavily cited Strawberry Pop-Tarts case (discussed here), which was also dismissed without prejudice, the plaintiff chose not to pursue the claims.

While no decision has been reported yet in the other “fudge” class action lawsuits, the outcome in favor of Kellogg indicates that for a case like this to ultimately succeed, where an ingredient name can be said to merely designate the flavor or taste of the product at issue, the plaintiff will most likely need to provide a well-designed market study as extrinsic evidence of consumer deception.