Source - Food & Beverage Litigation and Regulatory Update | Issue 795

“Fudge Covered Oreo” Lawsuit Dismissed

A New York court has dismissed with prejudice a complaint alleging that Mondelez Global misleads consumers by selling “Fudge Covered” Oreos produced without dairy ingredients containing milkfat. Leonard v. Mondelez Global LLC, No. 21-10102 (S.D.N.Y., entered March 8, 2023). The plaintiff had argued that the fudge covering was made with vegetable oils and nonfat milk, violating a reasonable consumer’s expectations for the ingredients of fudge. The court disagreed.

“[N]ot a single source claims that milk and butter are essential fudge ingredients or that milkfat is necessary to make fudge,” the court found. “Indeed, Molly Mills—who Plaintiff identifies as ‘one of today’s leading authorities on fudge’—describes fudge as ‘most commonly made from butter, sugar, and chocolate.’”

Referring to the vegetable oil and nonfat milk ingredients in the fudge covering, the court further noted, “He vaguely suggests that this is ‘inconsistent with what consumers expect,’ [] but provides nothing to support why a reasonable consumer would not expect ingredients that, in Plaintiff’s own words, are ‘often used’ in fudge.” The court then dismissed the allegations brought under New York law before going on to dismiss the Delaware, Kansas and Wyoming allegations on the same grounds.

Read more food, beverage and agribusiness industry news in the Food & Beverage Litigation and Regulatory Update.