in Newswire Published on November 29, 2021

Consumers Not Told Fudge-Covered Mint Oreos Lack ‘Essential Fudge Ingredients,’ Class Action Claims [DISMISSED]

Last Updated on March 29, 2023

Leonard v. Modelēz Global LLC

Filed: November 28, 2021 ◆§ 1:21-cv-10102

A class action claims the label on packages of fudge-covered mint creme Oreos gives consumers the misleading impression that the cookies are made with “essential fudge ingredients."

Defendant(s)

Mondelez Global LLC

Law(s)

Magnuson-Moss Warranty Act New York General Business Law

State(s)

New York

March 29, 2023 – Fudge-Covered Mint Crème Oreos Class Action Dismissed Over Insufficient Claims

The proposed class action lawsuit outlined on this page was dismissed with prejudice on March 8, 2023.

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In a 14-page order, United States District Judge Paul A. Crotty granted the defendant’s motion to dismiss the case, finding that the plaintiff’s false advertising allegation was insubstantial as the consumer failed to adequately argue fraudulent intent on the part of Mondelēz. Further, the plaintiff also failed to adequately contest that a reasonable consumer would mistakenly believe that the product’s “Fudge Covered” description implies that the cookies contain milkfat or butter, the judge relayed.

“The Court agrees that ‘Fudge Covered,’ without more, would not mislead a reasonable consumer into believing the product necessarily contained milkfat or butter, regardless of whether ‘Fudge Covered’ refers to the Product’s flavor or an ingredient,” the order states.

Though the plaintiff attempted to bolster their argument by citing “several recipes and various cookbook, textbook, and dictionary definitions” listing sugar, milk or cream and butter as fudge ingredients, Judge Crotty informed the consumer that courts have “repeatedly rejected” that dictionary definitions or recipes represent the views of “a significant portion of reasonable consumers.”

Further, the judge rejected the plaintiff’s breach-of-warranty claims, citing the consumer’s failure to provide the defendant with timely notice before filing the suit.

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A proposed class action contends that the front label on packages of fudge-covered mint creme Oreo cookies gives consumers the misleading impression that the product is made with “essential fudge ingredients” such as dairy and milk fat.

The 15-page case alleges defendant Mondelēz Global LLC has misled buyers by labeling packages of fudge-covered mint creme Oreos in a way that fails to honestly identify and describe the cookies’ components. Instead of dairy ingredients essential to real fudge, the Oreos are made with palm and palm kernel oil for fat content, the lawsuit says, arguing that the absence of dairy and milk fat results in a cheaper, less satisfying fudge.

Overall, the quality of fudge depends on the amount and type of fat-contributing ingredients, the filing relays.

“In contrast to dairy ingredients with milk fat, vegetable oils do not melt at mouth temperature and leave a waxy mouthfeel,” the case reads. “The result of substituting vegetable oils for dairy ingredients is that any resulting ‘fudge’ will provide less satiety, a waxy and oily mouthfeel, and leave an aftertaste.”

As the lawsuit tells it, the presence or absence of fudge and/or the ingredients expected to be found in fudge is “basic front label information” consumers rely on when making purchasing decisions. The suit says that even the product’s name, “Fudge Covered Oreo – Mint Creme,” and the picture of an Oreo covered in what appears to be fudge are misleading given consumers are led to expect the cookies to have dairy ingredients containing milk fat.

According to the case, a comparison of the ingredients in the Oreos at issue with those of regular Oreos shows that the “fudge” components are palm and palm kernel oil, nonfat milk, cocoa and natural flavor.

The filing argues that the value of the product purchased by consumers is materially less than its value as represented by Mondelēz, who has sold more of the product than it otherwise would have “in the absence of this misconduct.”

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