CHICAGO (Legal Newsline) – The maker of Nips hard candies is fighting back against a class action lawyer who claims its caramel can’t be called that because it doesn’t contain the proper amount of milk fat.
Ferrara Candy Company filed a motion to dismiss plaintiff Kianna Gardner’s lawsuit on July 1 in Chicago federal court. Gardner is represented by the prolific Spencer Sheehan, whose quest to sue the food industry has gained significant media attention and earned him the nickname “Vanilla Vigilante.”
As he often does, Sheehan in the Nips case turned to recipes and the dictionary to try to convince a federal judge Ferrara is misleading consumers who expect traditional caramel.
“Plaintiff makes the implausible claim that when consumers purchase a $2 box of Nips hard candy, they are misled to believe the candy contains more than a ‘de minimis’ amount of ‘milk fat,’” the motion to dismiss says, “even though the packaging never refers to ‘milk fat’ at all and says nothing about the amount of milk fat.”
Ferrara says the products do contain milk fat from whole milk and whey and picks apart Sheehan’s definition of caramel as “soft, dense, chewy candy made by boiling a mixture of milk or cream, sugars, glucose, butter and vanilla.”
“As stated on the front packaging, however, Nips is not a soft, chewy candy – it is a hard candy (that, in one of its varieties, comes with a caramel flavor),” the motion says.
Plaintiff, of course, does not cite any regulatory standard for how much milk fat (if any) a hard candy is ‘supposed’ to have. She does not allege what line supposedly separates a ‘de minimis’ amount of milk fat from a ‘non-de minimis’ amount of milk fat in a candy like Nips (or in any other candy, for that matter).
“And she certainly does not allege any factual basis for the fanciful notion that ordinary consumers have any expectation at all as to what quantity of milk fat is contained within Nips, let alone as to what quantity is ‘non-de minimis.’”
Companies that fight Sheehan’s cases have found success, with a Wisconsin federal judge recently calling the claims in his Bagel Bites lawsuit “unreasonable and unactionable.”