- On August 23, an Illinois federal judge dismissed a putative class action lawsuit
against Walmart over its fudge mint cookies (subscription to Law360 required). The plaintiff Eugene DeMaso
claimed that the product label was misleading because the cookies
did not contain fudge made from dairy fats or actual mint leaves.
However, U.S. District Judge Charles R. Norgle held that the label
was not misleading because no consumer expects the fudge to be made
with dairy fats, or that the mint refers to anything other than a
flavor.
- DeMaso had alleged that fudge must contain dairy ingredients as
its source of fat, but that the Walmart cookies contain only
vegetable oils. DeMaso's allegation was largely based on his
own definition of fudge. However, the definition of
"fudge" was not at issue but what a reasonable consumer
expects fudge to mean. Judge Norgle held that DeMaso did not
plausibly allege that reasonable consumers would expect fudge to
contain fat from dairy ingredients rather than vegetable
fats.
- DeMaso also argued that the declaration of the word
"mint," pictures of mint leaves, and green packaging led
consumers to believe the cookies contained mint as an ingredient.
However, Walmart suggested that absent words such as "made
with mint," a reasonable consumer would only conclude that the
cookies tasted like mint. Agreeing with Walmart, the court found
that mint is most commonly associated with flavor, and that
reasonable consumers would read the mint representation as a flavor
and it would be unreasonable and fanciful to conclude
otherwise.
- DeMaso sought to pursue his claims on behalf of a class of Illinois consumers, as well as consumers in 25 other states. The case was dismissed with prejudice.
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