Lederman v. The Hershey Company, No. 1:2021cv04528 – Document 43 (N.D. Ill. 2022)
Plaintiff asserts that hot fudge topping would contain the ingredients essential to hot fudge – cream and whole milk. She asserts that the quality of fudge depends on the amount and type of fat-contributing ingredients and that those fat ingredients are typically from dairy or vegetable oils.
These are the ingredients of Hershey Hot Fudge topping:
This product contains skim milk and whey milk. The consistency is derived from vegetable fat. Accordingly, plaintiff alleges that the labeling of this product as hot fudge topping is deceptive.
The standard is whether a reasonable consumer – is there a probability that a significant portion of the general consuming public or of targeted consumers acting reasonably in the circumstances could be misled. How do real consumers understand and react to the advertising.
Plaintiff cited to dictionaries, recipes, and confectionery experts to define fudge as being cream and whole milk-based. The court held that this was merely an understanding across random sub groups.
Rather, plaintiff needed to show that a significant portion of the general consuming public and there was no such showing. Motion to dismiss granted however with leave to replead.
Text of Lederman v Hershey: lederman v hershel d ill hot fudge