NEW YORK (Legal Newsline) – The pudding plaintiff is not being reasonable, the maker of Snack Packs says as it fights a class action lawsuit over claims they are made with real milk.
Conagra filed a motion to dismiss March 4 in New York federal court, hoping to cut off the lawsuit filed by prolific food litigator Spencer Sheehan of New York’s Sheehan & Associates.
What appears to be a trademark sign after the “made with real milk” claim on Snack Packs is actually an asterisk, when viewed under a microscope, he says. The lawsuit says nonfat milk is used to make the pudding and palm oil is used to provide fat in the pudding.
“Plaintiff claims she is a reasonable consumer, but her complaint shows that she is anything but,” attorneys for Conagra wrote about named plaintiff Jennifer Mena.
Her false label claim is based “on an irrational belief that ‘made with real milk’ insinuates the pudding either is made with milk in ‘its original and unmodified form’ (even though such unpasteurized, raw milk is illegal to sell in the U.S.) or that it is made with whole milk,” the motion says.
“Critically, Plaintiff only reaches these unreasonable conclusions because she admittedly ignores (1) the on-label asterisk in the phrase ‘made with real milk,’ which directs the consumer to the disclosure ‘made with nonfat milk’ and (2) the product ingredient list identifying non-fat milk as the second ingredient by predominance.”
Such speculative conclusions do not state a claim for relief, courts have found, Conagra claims.
The motion concludes that Sheehan should not be allowed to amend his lawsuit to cure its defects a second time.