December 7, 2022

Volume XII, Number 341

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December 06, 2022

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December 05, 2022

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Walmart’s Fudge Mint Class Action Permanently Dismissed

  • On August 23, an Illinois federal judge dismissed a putative class action lawsuit against Walmart over its fudge mint cookies. 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.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 236
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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