An Illinois federal court has granted Kellogg Sales Co.’s motion to dismiss a consumer’s putative class action complaint alleging that Frosted Chocolate Fudge Pop-Tarts lacked the milkfat (milk and butter) necessary for a product to be described as fudge. Reinitz v. Kellogg Sales Co., No. 21-1239 (C.D. Ill., entered June 2, 2022). As evidence for the claim, the plaintiff provided a book by Molly Mills, who was described as “one of today’s leading authorities on fudge”; Kellogg argued that Mills’ book, which contains 40 recipes for fudge, included multiple recipes that do not contain milkfat. “Plaintiff fails to support that the average consumer would believe a fudge product must, of necessity, contain milkfat,” the court found. Comparing a similar case dismissed when the plaintiff could not show that a reasonable consumer would be misled by the strawberry designation on the Pop-Tart label, the court dismissed the complaint but granted leave to amend within 14 days.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.