Proposed Class Action Lawsuit Claims Keebler Fudge Stripes Cookies Do Not Contain Real Fudge

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  • On January 8, 2021, a plaintiff filed a class action lawsuit against Ferrara Candy Co. (“Defendant”) alleging that Keebler Fudge Stripes cookies did not contain “real fudge”. The labels of the Keebler product state that the product is “made from real Keebler fudge” and contains a picture of chocolate fudge.
  • Fudge is not subject to any formal identity standard 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 finds that the fudge in the defendant’s biscuits contains vegetable oil, invert syrup, and whey. The plaintiff also alleges that the company masks the ingredients in the fudge by combining the ingredients for both the cookie and the fudge into a single ingredient list, rather than having separate lists of compound ingredients for the cookie and fudge components.
  • The plaintiff’s attorney on this case is Sheehan & Associates, which has successfully prosecuted cases against allegedly misleading vanilla products for the past several years. It remains to be seen whether the Keebler case will mark the start of a spate of cases against other foods allegedly containing fudge.

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