EAST ST. LOUIS – Chief U. S. District Judge Nancy Rosenstengel dismissed a potential class action over the meaning of fudge on Nov. 8.
She found plaintiff Ingrid Cox of St. Clair County didn’t allege that the label on Flipz White Fudge Covered Pretzels contained a false statement.
She gave Cox 30 days to amend the complaint.
Spencer Sheehan of Great Neck, New York filed Cox’s suit against pretzel maker Star Brands in January.
He quoted author Molly Mills stating modern fudge is most commonly made from butter, milk, sugar, and chocolate.
He alleged violation of consumer law in Illinois, Iowa, New Mexico, Michigan, Texas, Arkansas, Virginia, and Oklahoma.
Under Illinois law he alleged negligent misrepresentation and breach of warranty.
Star Brands counsel August Horvath of New York City moved to dismiss the complaint for failure to state a claim upon which to grant relief.
Rosenstengel found a consumer fraud plaintiff must demonstrate a deceptive or unfair act, an intention for others to rely on it, and actual damages.
She found a plaintiff must prove that a label could mislead a significant portion of the public or of targeted consumers acting reasonably.
She found consumer fraud claims involve disputes not suitable for dismissal at the pleading stage.
“However, a court may dismiss the complaint if the challenged statement is not misleading as a matter of law,” she wrote.
“While Cox has provided technical definitions of fudge and quotations from experts on its composition, she pleaded no facts to show that reasonable consumers have the same view.”
She found Cox didn’t allege that surveys showed consumers expect fudge to be comprised of sugar, butter, and milk.
She found Molly Mills included in her book at least 16 fudge recipes with no butter and five with no dairy whatsoever.
She found Cox pleaded no facts making it plausible that a reasonable consumer would believe there was so much palm and palm kernel oil in the coating that it was not in fact fudge.
She found a warranty claim failed because Cox didn’t plead that the pretzels were unfit for human consumption.
She found the label didn’t guarantee or promise that the product would be made using a specific recipe.
She found Cox didn’t plausibly allege that Star Brands misrepresented ingredients, “much less that it did so intentionally.”
District Judge Stephen McGlynn dismissed a Sheehan suit on Oct. 31, finding Lorna Doone shortbread cookies don’t have to contain butter.
He found the plaintiff’s understanding of the label fanciful and unreasonable.