Kellogg’s defeated yet another putative class action filed by prolific litigant Spencer Sheehan alleging that one of its Pop-Tarts products misleads consumers.  See Reinitz v. Kellogg Sales Co., 2022 WL 1813891 (C.D. Ill. June 2, 2022). 

Asserting state law consumer fraud theories, plaintiff argued that Kellogg’s Frosted Chocolate Fudge Pop-Tarts mislead consumers because they do not contain any fudge whatsoever.  According to plaintiff, true fudge contains butter and milk (i.e. “milkfat”), but Kellogg’s instead uses cheaper and lower quality “vegetable oils and whey” substitutes.  In support of these allegations, plaintiff pointed to a book by Molly Mills, a woman she described as “one of the today’s leading authorities on fudge.”  But plaintiff’s reliance on Mills’s book ultimately proved fatal to her claims.

As part of its motion to dismiss, Kellogg’s provided the court with a full copy of Mills’s book, since it was incorporated by reference in the complaint.  Although Mills’s book indicates that fudge is “most commonly made from butter, milk, sugar, and chocolate,” it also provides several fudge recipes that do not contain milkfat, undermining the plaintiff’s core theory of deception.  Moreover, analogizing to “vanilla” cases, Kellogg’s successfully argued that, even if milkfat were an essential component of fudge, the product would not be misleading because it has a fudgy flavor.  Ultimately, the court granted Kellogg’s motion to dismiss, determining that plaintiff had failed her burden to plausibly allege that a “probability that significant portion of the general consuming public could be misled.”