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Walmart’s Fudge Mint Class Action Permanently Dismissed – Class Actions



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  • 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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