• On January 8, 2021, a plaintiff filed a proposed class action lawsuit against Ferrara Candy Co. (“defendant”) alleging that its Keebler Fudge Stripes cookies do not contain “real fudge.” The labels of the Keebler product state that the product is “made with real Keebler fudge” and bear a picture of chocolate fudge.
  • Fudge is not the subject of a formal standard of identity under Food and Drug Administration regulations. In the complaint, the plaintiff relies on dictionary definitions of fudge to argue that the defendant’s product is not fudge because it does not contain sugar, butter, and milk. Instead, the plaintiff notes that the fudge in the defendant’s cookies contains vegetable oil, invert syrup, and whey. The plaintiff also claims that the company is masking the fudge’s ingredients by combining the ingredients for both the cookie and fudge in a single ingredient listing, as opposed to having separate compound ingredient listings for the cookie and fudge components.
  • The plaintiff’s counsel in this case is Sheehan & Associates, which has been prolific in pursuing cases against allegedly misleading vanilla products in recent years. It remains to be seen whether the Keebler case is the beginning of a flood of cases against other foods claiming to contain fudge.