Case: 1:21-cv-06334 Document #: 18 Filed: 08/23/22 Page 1 of 12 PagelD #:149
`Case: 1:21-cv-06334 Document #: 18 Filed: 08/23/22 Page 1 of 12 PageID #:149
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`EUGENE DEMASO, individually and on
`behalfofall others similarly situated,
`
`Plaintiff,
`
`Case No. 1:21-cv-06334
`
`Vv.
`
`WALMARTINC.,
`
`Defendant.
`
`Hon. Charles R. Norgle
`
`ORDER
`
`Defendant’s motion to dismiss [8] is granted with prejudice. Civil case terminated.
`
`STATEMENT
`
`Plaintiff Eugene DeMasobringsthis putative class action against Defendant, Walmart Inc.
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`Defendantsells a product called Fudge Mint Cookies underits Great Value brand (“the Product”),
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`which are cookies covered in fudge and flavored by mint ingredients. Dkt.
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`| § 1. Plaintiff claims
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`the Product’s label is misleading to consumers underthree theories: (1) the label claims it contains
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`fudge whenit does not, underPlaintiff's definition of fudge; (2) the label claims it contains mint
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`ingredients when it does not; and (3) the label, by truthfully asserting it contains cocoa, makes
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`consumers trust the fudge and mint claims. Plaintiff proposes an Illinois class and a multi-state
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`class who purchased the Product during the statute of limitations for each cause of action alleged
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`(the “Consumer Fraud Multi-State Class”).! Id. § 82. Plaintiff asserts the following claims
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`' The Consumer Fraud Multi-State Class includes individuals from the following States: North Dakota, Texas, West
`Virginia, Virginia, North Carolina, Delaware. Montana, Kentucky, Tennessee, New Hampshire, New Mexico,
`Michigan, Alaska, South Dakota, Oklahoma, Utah, Nebraska, Georgia, lowa, South Carolina, Indiana, Maine, Rhode
`Island, Kansas, and Wyoming. Dkt.
`| 4 82.
`
`

`

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`individually and on behalf of the proposed classes: (1) violations of the Illinois Consumer Fraud
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`and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1, ef seq.; (2) violations of the
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`ConsumerFraud Acts of the States in the Consumer Fraud Multi-State Class; (3) breaches of
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`express warranty, implied warranty of merchantability, and the Magnuson Moss Warranty Act
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`(“MMWA”), 15 U.S.C. § 2301, et seq.; (4) negligent misrepresentation; (5) fraud; and (6) unjust
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`enrichment. Defendant moved to dismiss the complaint under Federal Rule of Civil Procedure
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`12(b)(6).? Dkt. 8. Because Plaintiff has not plausibly shownthe Product’s labelis misleading to a
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`reasonable consumer,
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`the Court grants Defendant’s motion and dismisses each count with
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`prejudice.
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`I. BACKGROUND
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`Defendant manufactures, markets, and sells the Product with the following labeling:
`
`AND ARTIFICIAL FLAVOR.
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`INGREDIENTS: SUGAR, ENRICHED WHEAT
`FLOUR (FLOUR, NIACIN, REDUCED IRON,
`THIAMINE MONONITRATE,RIBOFLAVIN,
`FOLIC ACID), VEGETABLE OIL SHORTENING
`(CANOLA, PALM KERNEL AND PALM OILS),
`COCOA (PROCESSED WITH ALKALI),
`LEAVENING (BAKING SODA, SODIUM ACID
`PYROPHOSPHATE, MONOCALCIUM
`PHOSPHATE), SOY LECITHIN, SALT, NATURAL
`
`Dkt. 1 §{ 1, 31. Plaintiff asserts three theories for why the Product’s labeling is misleading. First,
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`accordingto Plaintiff, fat ingredients are essential to fudge. Dkt. 1 § 17. In particular, to be properly
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`considered fudge, the fat must be made with dairy ingredients rather than vegetable oils. Id. § 31.
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`* Defendantalso moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) but then later agreed that Plaintiff
`had subject matter jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). Dkt. 13 at 1. Because
`the Court dismisses the motion under 12(b)(6), the Court does not address 12(b)(1).
`2
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`

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`To support
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`this assertion, Plaintiff cites various fudge sources including recipes, dictionary
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`definitions, textbooks on confectionary science and technology, and leading fudge authorities. Id.
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`{| 4-6, 7, 10. For example, “Molly Mills, one of today’s leading authorities on fudge, recently
`
`described it as made most commonly frombutter, milk, sugar, and chocolate.”Id. § 7 (cleaned up).
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`Plaintiff alleges that reasonable consumers expect fudge to be made with dairy ingredients. Id. §
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`33. The Product, Plaintiff alleges, does not contain dairy ingredients, using vegetable shortening
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`forits fat content. Id. 34. Accordingly, Plaintiff says, because the Productdoes not contain fudge
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`or fudge ingredients, it is misleading to label the Product as “fudge.” Id. § 37.
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`Plaintiffs second theory concerns mint. Plaintiff contends that consumers expect the
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`Product to contain mint ingredients because the Product’s packaging is green and has two mint
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`leaves next to the word “mint.” Id. § 38. The Product, Plaintiff asserts, does not contain mint. Id.
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`| 39. Rather the Product’s mint taste comes from natural andartificial flavors. Id. § 40. Thus, the
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`Product’s labeling is misleading because it leads consumers to believe the Product will contain
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`mint as an ingredient whenit does not. Id. § 39.
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`Plaintiff's third theory is a variation on the first two. Because the label truthfully asserts
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`the claim “Made with Real Cocoa,” it makes the consumerstrust the fudge and mint claims. Id. §
`
`41-42. Because the Product label was truthful in one aspect, it leads consumersto trust the other
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`aspects—fudge and mint—whichare misleading.
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`Altogether, Plaintiff alleges Walmart, by labeling the Product in this manner, gained an
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`advantage against other companies, and against consumers seeking to purchase a productthat
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`contained fudge and mint ingredients. Id. § 45. According to Plaintiff, the value of the Product was
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`materially less than its value as represented by Defendant. Id. { 46. Defendant sold more of the
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`Product and at higher prices than it would have in the absence of this misconduct, resulting in
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`3
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`

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`additional profits at the expense of consumers. Id. § 47. Had Plaintiff and the proposed class
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`members knownthetruth, Plaintiff argues, they would not have bought the Product or would have
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`paid less forit. Id. § 48.
`
`Il. STANDARD
`
`To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain a “short
`
`and plain statementof the claim showingthat the pleaderis entitled to relief.” Fed. R. Civ. P. 8(a);
`
`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-557 (2007). The complaint “must provide
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`enough factual informationto ‘state a claimto relief that is plausible onits face’ and ‘raise a right
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`to relief above a speculative level.’” Doe v. Village of Arlington Heights, 782 F.3d 911, 914 (7th
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`Cir. 2015) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendantis liable for the misconduct alleged.” Id. (cleaned up). In reviewing the Plaintiff's claim,
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`the Court must construe all of the plaintiff's factual allegations as true, drawing all reasonable
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`inferences in the plaintiff's favor. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
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`III. DISCUSSION
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`The Court addresses Plaintiff's claims in two movements. The Court first discusses why
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`the Product’s labeling is not misleading as a matter of law underany ofthe Plaintiffs three theories
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`of deception.? Next, the Court finds that Plaintiffs other causes of action fail because they are
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`based on the sametheories of deception.
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`* Plaintiff's third theory of deception is premised onthe first two. Dkt.
`does not address the third.
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`| § 41-42. Because the first two fail, the Court
`
`4
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`

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`A. Illinois Consumer Fraud and Deceptive Business Practices Act
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`The ICFA “protect[s] consumers .
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`.
`
`. against fraud, unfair methods of competition, and
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`other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d
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`403, 416-17 (2002). Deceptive or unfair practices include any “misrepresentation or
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`the
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`concealment, suppression or omission of any material fact.” 815 ILCS 505/2. To survive a Rule
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`12(b)(6) motion, plaintiffs bringing deceptive conduct claims under the ICFA must allege with
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`particularity that the “defendant committed a deceptive .
`
`.
`
`. act with the intent that others rely on
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`the deception, that the act occurred in the course of trade or commerce, and that it caused actual
`
`
`
`damages.” Vanzantv. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019) (citing Siegal
`
`vy. Shell Oil Co., 612 F.3d 932, 934-35 (7th Cir, 2010)). Plaintiff must plausibly allege that the
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`front label likely leads a significant portion of reasonable consumersto falsely believe something
`
`that the backlabels belie. Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th Cir. 2020).
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`What matters most is how real consumers understand and reactto the advertising. Id.
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`Although an ICFA claim may “involve disputed questions of fact not suitable to a motion
`
`to dismiss, a court may dismiss the complaintif the challenged statement was not misleading as a
`
`matter of law.” Iborrola v. Kind, LLC, 83 F. Supp. 3d 751 (N.D. Ill. 2015) (citing Bober v. Glaxo
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`Wellcome PLC,246 F.3d 934, 940 (7th Cir. 2001)). A court may find a statement is not misleading
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`as a matter of law where the plaintiff's claims are “fanciful interpretations of labels or other
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`advertising.” Bell, 982 F.3d at 477.
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`1, A reasonable consumer would not plausibly expect the Product’s label to promise
`fudge madefrom specific ingredients, such as butter and milk.
`
`Central to Plaintiff's theory of deception regarding the Product’s “fudge”is that fudge must
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`contain dairy ingredients as its source of fat. Defendant contends that the Product’s “fudge”label
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`

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`is not misleading because no reasonable consumer would interpret the term “fudge” to refer to
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`specific ingredients (i.e., butter and milk). Dkt. 9 at 15. Plaintiff ignores Defendant’s arguments
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`that he has not plausibly shownthat a reasonable consumer would consider “fudge” to contain
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`specific ingredients. Plaintiff merely states that his definition of fudge is not unreasonable because
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`he has cited numerousdefinitions of fudge, both general purpose and academic. Dkt. 15 at 2-3.
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`These definitions, Plaintiff argues citing inapposite authority, are consistent with how courts
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`“discern a word’s plain meaning” and “evidenceofthe public’s understanding of a term.” Dkt. 15
`
`
`at 3 (citing Forth v. Walgreen Co., No. 17-cv-2246, 2018 WL 1235015, at *11 (N.D. Ill. Mar. 9,
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`2018) (interpreting the word “display” in the context of statutory interpretation) and G. Heileman
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`Brewing Co. v. Anheuser-Busch Inc., 676 F. Supp. 1436, 1467 (E.D. Wis. 1987) (trademark
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`infringement)).
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`Thereare at least three problems with these arguments. First, the issue before the Court is
`
`not what “fudge” means but what a reasonable consumer expects it to mean. Second,
`
`that
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`dictionary definitions both general purpose and academic include dairy ingredients in their
`
`definitions of fudge does not imply that dairy ingredients would be included in a reasonable
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`consumer’s expectation. Doe v. Village of Arlington Heights, 782 F.3d at 914. And further, Molly
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`Mills—a leading authority on fudge—notes fudgeis “most commonly” made “from butter, milk,
`
`sugar and chocolate,” not that it must be made from those ingredients. Dkt. 16 at 4 (emphasis
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`added); Reinitz v. Kellogg Sales Co., No. 21-CV-1239-JES-JEH, 2022 WL 1813891, at *3 (C.D.
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`Ill. June 2, 2022). Third, Plaintiff misstates the reasonable consumer standard. The issue is not
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`whether /is expectation was reasonable but whether a reasonable consumer would interpret fudge
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`to mean it must contain dairy fats rather than vegetable fats. Plaintiff's own subjective definition
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`of fudge, however reasonable in his own mind, does not imply his definition aligns with that of
`
`6
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`

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`reasonable consumer. See Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 758 (7th Cir. 2014)
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`(noting whether a product is misleading to a reasonable consumer “is an objective question, not
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`one that depends on each purchaser’s subjective understanding” of the product).
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`Plaintiffhas not plausibly alleged that reasonable consumers would expect fudge to contain
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`fat from dairy ingredients rather than vegetable fats. The Court notes that Plaintiffs fudge
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`allegations are substantially identical to a case in this circuit, which dismissed similar claims.
`
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`Reinitz, 2022 WL 1813891, at *1. The plaintiff in Reinitz alleged that the labeling of“Frosted
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`Chocolate Fudge Pop-Tarts” was misleading because the product contained whey and vegetable
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`fats in lieu of butter and milk, “ingredients which she claim[ed] are integral to fudge.” Id. The
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`court dismissed the claim there because the plaintiff had not plausibly alleged “that the average
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`consumerwould believe that a fudge product must, of necessity, contain milkfat.”’ Id. at *3 (citation
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`omitted). Absent a plausible allegation that “a reasonable consumer would expectfudge to contain
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`milkfat,” the court concluded, the plaintiff “fail[ed] to establish that a consumer who purchased
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`non-milkfat-containing Fudge Pop-Tarts would be deceived.” Id. at *4. Here, as in Reinitz,
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`Plaintiff has not alleged enough factual information to claim that a reasonable consumer would
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`read the word “fudge” in the Product’s label to imply it must necessarily contain fat from dairy
`
`ingredients. Nor does he show that this subjective definition of fudge—whether or not experts
`
`agree with it—mapsonto the objective definition of a reasonable consumer. Id. at *3. Accordingly,
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`his theory of deception regarding fudgefails.
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`2. The Product’s mint representations promise a mint flavor, not an ingredient.
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`Plaintiff's second theory of deception concerns mint. Plaintiff alleges that the Product’s
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`mint label
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`is misleading because the word “mint,” the pictures of mint leaves, and the green
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`packaging lead consumers to believe it contains mint as an ingredient. Yet, the Product does not
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`7
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`

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`contain mint, and its mint flavor comes from natural and artificial ingredients. Dkt. 1 4 39-40. The
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`Plaintiff does not disputeorallege that the Product doesnot, infact, taste like mint. Id. § 40. Rather,
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`the parties dispute whether the Product promisesaflavor oran ingredient.
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`Onone hand, Defendant analogizes Plaintiff's case to countless courts who have dealt with
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`the claim thatit is misleading to label a product “vanilla” if the source of vanilla comes from
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`
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`sourcesother than the vanilla bean.See,e.g., Turnipseed v. Simply Orange Juice Co., No. 20 CIV.
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`8677 (NSR), 2022 WL 657413, at *3 (S.D.N.Y. Mar. 4, 2022) (“[T]here is nothing in the word
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`vanilla itself that would lead a reasonable consumerto understand a product’s flavor to be derived
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`mostly or exclusively from the vanilla bean.”) (collecting cases) (cleaned up). Defendantalso cites
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`a case in this district, which found that the term “vanilla” and an imageof a vanilla flower did not
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`suggest that the product’s vanilla flavor came from vanilla beans. Zahora v. Orgain LLC, No. 21
`
`C 705, 2021 WL 5140504, at *4 (N.D. Ill. Nov. 4, 2021) (noting that “[h]ad the Product’s label
`
`contained words such as ‘made with vanilla beans’ or ‘contains vanilla beans,’ then a reasonable
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`consumer might have been led to believe that vanilla from vanilla extract is the primary or
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`exclusive source of its flavor.”). Defendant suggests that absent words such as “made with mint,”
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`a reasonable consumercould only conclude that the cookies taste like mint. Dkt. 16 at 10.
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`Onthe other hand, Plaintiff distinguishes the vanilla cases, arguing the issue in those cases
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`dealt with the products’ flavors, not ingredients. Plaintiff says vanilla is a flavor designator
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`whereas, here, mint is an ingredient, providing nutritional value. Second, Plaintiff argues the
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`pictures of mint leaves differentiate this case from most of the vanilla cases, where the product’s
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`labeling only contained the word “vanilla” without any indication regarding the source, such as
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`vanilla beans. Moreover, the Product does not contain qualifying terms such as “Mint Flavored”
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`or “Artificial Mint Flavored” which could have put Plaintiff on notice that it did not contain mint
`
`8
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`

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`ingredients. Finally, Plaintiff points to Bell arguing that when there is “room to argue aboutthe
`
`precise meaning of... front label claims,” a motion to dismiss under 12(b)(6) should be denied.
`
`
`Dkt. 15 at 6 (citing Bell, 982 F.3d at 494).
`
`The Court agrees with Defendant. First, Plaintiff's reading of Bell proves too much. Where
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`a reading ofa label is “unreasonable orfanciful” a court may concludethat a label is not misleading
`
`
`as a matter of law. See Bell, 982 F.3d 468, 477. Regarding Plaintiff's nutritional claim,it is highly
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`unlikely that a consumer would purchase Walmart’s Great Value Fudge Mint Cookies for mint’s
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`nutritional value as an ingredient. Brownv. Kellogg Sales Co., No. 1:20-CV-7283-ALC, 2022 WL
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`992627, at *5 (S.D.N.Y. Mar. 31, 2022) (“[A] reasonable consumeris unlikely to purchase a
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`toaster pastry coated in frosting exclusively for the nutritional value of strawberries in its fruit
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`filling.”). People do not buy fudge cookies fortheir nutritional value,
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`The primary issue concerns whether the Product’s “mint” representations promise a mint
`
`flavor or mint as an ingredient. The Court finds that this case “hews closer” to the vanilla cases
`
`than to
`
`a
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`case promising ingredients. See Cruz
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`_v. D.F. Stauffer Biscuit Co., No.
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`20CV2402PGGIJLC, 2021 WL 5119395, at *6 (S.D.N.Y. Nov. 4, 2021) (finding case involving
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`lemon snap cookies with pictures of three lemons wascloserto vanilla cases than a case involving
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`ingredient misrepresentations). Mint is most commonly associated with flavor. Much like ice
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`cream, “mint” products, like toothpaste, chewing gum, or mouth washare “routinely identified by
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`[their] flavor, not by [their] ingredients.” Wachv. Prairie Farms Dairy, Inc., No. 21 C 2191, 2022
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`WL 1591715, at *3 (N.D. Ill. May 19, 2022). So, the word “flavored” after “mint” would be
`
`superfluous. Moreover, of the vanilla cases, the only ones that appear to have survived dismissal
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`are those which contain a “label reading Made with Aged Vanilla.” Id. *3 n.2 (collecting cases and
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`finding that the only cases that survived dismissal were those that involved a label reading “Made
`
`9
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`

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`with Aged Vanilla.”) (cleaned up). Here, the label does not contain a “Made with Mint” label. But
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`it does contain a label reading “Made withreal cocoa.” This would put a reasonable consumeron
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`notice that the only ingredientclaim they could reasonably rely on is cocoa—contraryto Plaintiff's
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`conclusions that a reasonable consumerwould infer the opposite, which the Court need notaccept.
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`Burger v. Cnty. of Macon, 942 F.3d 372, 374 (7th Cir. 2019) (citing Iqbal, 566 U.S. at 678). Even
`
`though the package contains pictures of two mint leaves, these leaves are stylized imitations of
`
`real mint leaves, which would further lead a reasonable consumerto conclude that they were not
`
`getting the real thing. Reasonable consumers would read the mint representationsas a flavor, and
`
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`it would be unreasonable and fanciful here to conclude otherwise. Bell, 982 F.3d at 477; but see
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`Harris v. Kashi Sales, LLC, No. 21-CV-50376, 2022 WL 2390933, at *1 (N.D. IIL. July 1, 2022)
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`(finding on a motion to dismiss that product’s “mixed berry” label was plausibly misleading
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`because it was unclear whether “mixed berry” referred to a flavor or an ingredient). Unlike in
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`Harris, it would be clear to the reasonable consumer that this Product’s mint representations refer
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`to its flavor, not its ingredients—‘“mixed berry” is not a common flavor. And Plaintiff does not
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`dispute that the Product, in fact, tastes like mint. See Dkt. 1 § 40. Accordingly, the Court finds that
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`the mint representations on the Product’s label are not misleading as a matter of law. A similar
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`conclusion could also be drawn here for “fudge”as a flavor, not an ingredient.
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`The Court’s findings in Karlinski v. Costco Wholesale Corp., No. 1:21-CV-03813, 2022
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`WL 2867383, at *6 (N.D. Ill. July 21, 2022) (Norgle, J.) comports with the result here. There, the
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`product at issue was a chocolate almond dipped vanilla ice cream bar, which contained pictures of
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`the raw ingredients at the bottom of the Product’s label (e.g. chocolate chunks), The Court dealt
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`with the issue of what a reasonable consumer would expect “chocolate” to mean. However, the
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`Court entertained the plaintiff's argument regarding whether the pictures of chocolate chunks
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`10
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`warranted a certain amount of chocolate in the product. The Court found that the pictures of
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`chocolate chunks “presented alongside other ingredients .
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`.
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`. serve as an indication of what
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`ingredients will be in the Product, not of how much.”Id. at *6 (N.D. Ill. July 21, 2022). The
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`particular issue in Karlinski was whether the chunks represented a certain amount of that
`
`ingredient, not whetherthe ingredient was in the product. The Court there essentially assumedthat
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`the pictures represented ingredients. Moreover, the pictures of the assumed ingredients werereal
`
`images,notstylized imitations as here. In contrast, the issue in this case is squarely whetherthe
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`word “Mint” coupled with stylized pictures of mint leaves leads a reasonable consumerto believe
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`that the Product contains real mint. The Court find it does not.
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`B. Out-of-State Consumer Fraud Acts; Common Law, and MMWAclaims.
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`According to Plaintiff, the Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive businesspractices in the conductof trade or commerce. Dkt.
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`1 § 98. Accordingly, the Court assumes these Acts are substantially the same as the ICFA forthe
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`purposes of determining whethera reasonable consumer would be deceived by the Product’s label.
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`Jacobs v. Whole Foods Mkt. Grp., Inc., No. 22 C 2, 2022 WL 3369273, at *2 (N.D. Ill. Aug. 16,
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`2022).
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`Plaintiff's claims for violations of out-of-state consumerfraud statutes; breach of express
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`warranty, implied warranty of merchantability, and MMWA; negligent misrepresentation; fraud;
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`and unjust enrichment are each premised on the same theory of deception as his ICFA claim. Dkt.
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`1 § 99 (“Defendant intended that plaintiff and each of the other members of the Consumer Fraud
`
`Multi-State Class would rely upon its deceptive conduct[.]””); id. § 102 (“The Product .
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`.
`
`. expressly
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`and impliedly warranted to plaintiff and class members that
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`it contained fudge and mint
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`ingredients.””); id. | 112 (“Plaintiff and class members reasonably and justifiably relied on these
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`1]
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`

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`negligent misrepresentations and omissions[.]”’); id. § 114 (“Defendant misrepresented and/or
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`omitted the attributes and qualities of the Product, that it contained fudge and mintingredients.”):
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`id. § 117 (“Defendant obtained benefits and monies because the Product was not as represented
`
`and expected[.]”). Accordingly, because the Product’s labeling is not false, misleading, or
`
`deceptive as a matter of law, Plaintiffs other claimsalso fail. See Wach, 2022 WL 1591715, at *6
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`(finding that Plaintiff's common law and MMWAclaimsfail because they were premised on the
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`incorrect assertion that the Product’s labeling is false, deceptive, and misleading).
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`IV. CONCLUSION
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`Plaintiff has not plausibly alleged that reasonable consumers would be misled by the
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`statements on the Product’s label, and an amendment to his pleadings cannot change that.
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`Defendant’s motion to dismiss is granted with prejudice. See Runnion ex rel. Runnion v. Girl
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`Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510, 520 (7th Cir. 2015) (A district
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`court should generally grant leave to amend a complaint after granting a motion to dismiss unless
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`any amendment would be futile.),
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`IT IS SOQ ORDERED:
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`ENTER:
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` CHARLES RONALD NORGLE
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`United States District Court
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`DATE: August 23, 2022
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`