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.”

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Photo of James Holloway James Holloway

James Holloway advises companies and trade associations on FDA regulation of cosmetic, food, dietary supplement, drug, and medical device products as well as advertising and consumer protection law. With a focus on consumer products, James regularly counsels clients on how to minimize FDA…

James Holloway advises companies and trade associations on FDA regulation of cosmetic, food, dietary supplement, drug, and medical device products as well as advertising and consumer protection law. With a focus on consumer products, James regularly counsels clients on how to minimize FDA, FTC, state, and consumer class action risks while advancing their business objectives. His practice encompasses issues related to product labeling and marketing, favorable regulatory classifications, Proposition 65, mobile medical applications, strategic engagement with regulators and legislators, and FDA’s implementation of the Modernization of Cosmetics Regulation Act (MoCRA).

James also advises on a range of advertising and consumer protection issues including influencers, claim substantiation, and green claims. He also has experience representing clients before the NAD and in investigations conducted by the FTC regarding product marketing practices.