NEW YORK (Legal Newsline) – Another federal judge has rejected a proposed class action lawsuit brought by a lawyer who demands the literal from food companies.
Judge Nelson Roman on July 27 tossed Spencer Sheehan’s case against Demet’s Candy Company, which makes the pretzel snacks Flipz. He alleged the ingredients in the white fudge-covered pretzels didn’t add up to real fudge because they lacked milkfat.
This decision follows a loss in Sheehan’s lawsuit over chocolate fudge Pop-Tarts.
“A reasonable consumer would not infer that the product was made with a specific fudge recipe or ingredient without additional representations on the packaging,” Roman ruled.
“While the complaint lists several recipes and sources that list the ingredients for fudge that include sugar, milk and butter, none of these sources claim that this is the only recipe for fudge.
The case claimed the fudge contained vegetable fats instead of dairy fats, misleading customers willing to pay for the pretzels.
Sheehan actively targets food-makers and other companies. His cases are often filed as prospective class actions, which leads some defendants to settle quickly to avoid lengthy and costly litigation. But those who fight point to the standard that must be proven in his claims – that a reasonable consumer would be misled by a company’s claims.
On May 6, a Wisconsin federal judge tossed Sheehan’s lawsuit against Kraft Heinz Food Company that alleged Bagel Bites have cheese that is a blend made with skim milk and tomato sauce that contains ingredients consumers wouldn’t expect.
He called Sheehan’s claims “unreasonable and unactionable.” Ricola, in fighting a lawsuit over whether the Swiss Alpine herbs it advertises in its cough drops help customers, recently called his case “implausible and absurd.”
The maker of Oreos awaits a decision on its June motion to dismiss Sheehan’s fudge case against it.
“(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.