False Advertising? Lawsuits Claim Pop-Tarts, Entenmann’s Cake, Hershey’s Hot Fudge Lack Fudge Ingredients

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Three lawsuits filed this week claim several popular “fudge” products—Frosted Chocolate Fudge Pop-Tarts, Entenmann’s Chocolate Fudge Iced Cake, and Hershey’s Hot Fudge—are misleadingly labeled in that they lack certain ingredients essential to real fudge.

According to the cases, defendants Kellogg Sales Company, Bimbo Bakeries and The Hershey Company have substituted cheaper ingredients, including vegetable oils and whey, for more expensive milk fat, which imparts the “creamy, rich taste” consumers associate with real fudge.

“The result is that the Product’s ‘fudge’ provides less satiety, a waxy and oily mouthfeel, and leaves an aftertaste,” each complaint states in essentially the same words.

The lawsuits claim buyers who viewed the representations on the Pop-Tarts, Entenmann’s cake and Hershey’s hot fudge packaging have been misled into believing the products contained “a greater relative and absolute amount of actual fudge ingredients” than they do and have thus purchased items worth “materially less” than their represented value.

“Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers,” each complaint states.

The lawsuits explain that fudge is traditionally made with sugar, butter and milk. The milk fat from the dairy ingredients is an especially important component, the cases stress, given it contributes to the taste and mouthfeel of the fudge. Alternatives to milk fat, such as vegetable oils, are to be avoided when making fudge because they “leave a waxy mouthfeel” and can add “off-odors” to food, according to the suits.

The lawsuits allege that calling the Pop-Tarts, Entenmann’s and Hershey’s products “fudge” is misleading to consumers because the products “lack[] ingredients essential to fudge” while substituting lower quality, cheaper ingredients.

More specifically, the cases against Kellogg Sales Company and Bimbo Bakeries respectively claim that the “Chocolate Fudge” Pop-Tarts and Entenmann’s “Chocolate Fudge” cake contain no butter and milk and instead substitute soybean and palm oil and whey. Whey, the suits explain, “is the watery part of milk” and lacks the milk fat essential to providing the creamy texture of fudge.

According to the lawsuit against The Hershey Company, the Hershey’s “hot fudge” product lacks “ingredients essential to hot fudge,” i.e., cream and milk, and instead contains skim milk and whey. Unlike whole milk and cream, skim milk contains no fat and whey contains only a trace amount, the suit says. The product’s fat content is “provided almost exclusively” by hydrogenated coconut oil, which results in the “hot fudge” imparting “less satiety, a waxy and oily mouthfeel, and [] an aftertaste,” the lawsuit alleges.

The three cases further claim that vegetable oils are “linked to health problems” and lack certain vitamins found in milk fat ingredients.

According to the lawsuits, consumers would not have purchased the “fudge” products, or would have paid less, had they known the foods did not contain as much fudge as they were led to expect.

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