Last week, a New York judge permanently tossed a false advertising lawsuit against Oreo-maker Mondelez Global, LLC over its Fudge Covered Mint Crème Oreo cookies. The suit claimed that the product’s “Fudge Covered” description is false, deceptive, and misleading because the product does not contain dairy ingredients that a reasonable consumer would expect to find in fudge.
According to the plaintiff, consumers would expect the product’s “Fudge Covered” labeling to mean that the product contains fudge “made of dairy ingredients containing milkfat.” The plaintiff cited several recipes as well as cookbook, textbook, and dictionary definitions to support the assertion that milk, cream, and butter are common fudge ingredients. The Oreo cookie product contains nonfat milk and palm oils for its fat content.
Oreo argued that not only is the term “fudge” in its label used in reference to the product’s chocolate flavor and not its ingredients, but that no reasonable consumer would associate “fudge” with the presence of dairy ingredients.
The court stated that dictionary definitions or recipes, without more, are not representative of the views of a significant portion of reasonable consumers – and that even if they were, the definitions presented by the plaintiff refer to fudge as a standalone food, as opposed to a cookie coating, which is how it is used in the product at issue. Further, the court stated, “not a single source claims that milk and butter are essential fudge ingredients or that milkfat is necessary to make fudge.”
Mondelez’s motion to dismiss was granted with prejudice.
The opinion cites to recent relevant examples including this shortbread cookie suit, where the it was held that “shortbread” in the product’s name does not imply that its ingredients include butter.
"Even assuming that plaintiff's sources can be representative of a reasonable consumer, the definitions are inapposite because they refer to fudge as a standalone food, not a cookie coating"