NEW YORK (Legal Newsline) – The maker of Oreo cookies wants a proposed class action lawsuit that says it doesn’t use real fudge to be thrown out of court.
Mondelez Global filed a motion to dismiss June 3, noting a similar lawsuit filed by the same lawyer over Pop-Tarts had just been tossed by an Illinois federal judge. The attorney filing these and other “real” fudge cases has a long history of class actions against the food industry.
“And many courts across the country have dismissed similar lawsuits premised on the theory that representations about a product’s flavor misled consumers about the product’s ingredients,” Dean Panos of Jenner & Block wrote for Mondelez Global.
“This court should similarly reject Plaintiff’s implausible allegation that the term ‘fudge’ suggests that Fudge Covered Mint Crème Oreo cookies contain butter and milk.”
Most of attorney Spencer Sheehan’s food lawsuits boil down to whether a “reasonable consumer” would be misled by a product’s packaging. His cases against companies that produce fudge snacks – like Hershey Hot Fudge Topping, Duncan Hines Chewy Fudge Brownie Mix and Entenmann’s Chocolate Fudge Iced Cake – complain the fudge used doesn’t adhere to the traditional description of it.
The Oreos contain palm kernel oil and nonfat milk, the suit says. The judge in the Pop-Tarts said Sheehan couldn’t show reasonable consumers would expect milkfat.
Mondelez said in its motion to dismiss that it doesn’t represent that its fudge Oreos contain butter, milk or any other ingredient.
“(A) reasonable consumer would interpret it to mean that Fudge Covered Mint Crème Oreo cookies taste like chocolate (which they do) and are covered in a chocolate-flavored coating (which they are),” the motion says.