NEW YORK (Legal Newsline) – The consumer protection lawsuit alleging white fudge-covered Flipz are misleading customers is ridiculous, the product’s maker is arguing in a motion to dismiss.
Star Brands filed the document Feb. 4 in New York federal court in an effort to cut off the class action filed by food lawyer Spencer Sheehan, whose case alleges the ingredients in the Flipz are not consistent with real fudge.
Star Brands complains Sheehan’s perspective would require it to conform “to certain specific recipes for home-made fudge dating as far back as the Nineteenth Century.”
“There are no absolute legal or canonical definitions for the ingredients in fudge,” the motion adds. “A reasonable consumer understands ‘fudge’ in this context to refer to a soft candy coating having a certain flavor… and a specific soft, creamy texture.
“Moreover, in the context of a packaged snack foods, reasonable consumers – even if there were a canonical definition of home-made fudge – would not expect a fudge covering to conform to such a traditional, rustic definition.”
Sheehan filed the suit June 23. It says fudge is made by mixing sugar, butter and milk but the ingredients list on the Flipz reveals the presence of hard vegetable fats.
With most of Sheehan’s lawsuits, the key issue will be whether a reasonable consumer would be misled. Many defendants point to the fact that the ingredients are listed on their packaging.
“Plaintiff… alleges that the product is misleading because ‘the fat content in the product’s fudge is not balanced between vegetable fats and dairy ingredients.’ Plaintiff alleges absolutely no basis for the requirement that there be any particular relative proportions or ‘balance’ of different sources of fat in fudge, other than insisting every ‘fudge’ recipe should conform to the ratio between vegetable fats and dairy ingredients found in a specific Nineteenth Century recipe,” the motion says.