By Jonathan Stempel
(Reuters) - A federal judge in Chicago has dismissed a proposed class action lawsuit accusing Walmart (NYSE:WMT) Inc of deceiving shoppers by selling Fudge Mint cookies that lacked fudge and mint.
Eugene DeMaso, of La Salle, Illinois, said packaging for the cookies sold under Walmart's Great Value label misled reasonable consumers because the cookies' "fudge" contained no milkfat and its "mint" contained no mint ingredients.
In a decision on Tuesday, U.S. District Judge Mary Rowland said no cases showed that consumers expect "fudge" to contain milkfat, and DeMaso undercut his argument by asserting that fudge could contain vegetable oils, as Walmart's cookies did.
Rowland also agreed with Walmart that "mint" promised a flavor, not actual mint.
The judge likened the case to lawsuits where courts found that vanilla was not a required ingredient in products such as vanilla ice cream. What mattered, she said, was that products tasted like vanilla.
DeMaso's lawyer Spencer Sheehan, who filed many lawsuits over vanilla, said he would review the decision and that his client had not decided whether to appeal.
Walmart spokesman Randy Hargrove said in an email: "We are pleased with the court's ruling and will continue to defend the company against these allegations."
Litigation against the food and beverage industry has grown in recent years, and the law firm Perkins Coie said 325 proposed class actions were filed in 2021.
DeMaso had sued on behalf of consumers in 26 U.S. states. The lawsuit said Walmart's cookies sold for at least $1.89 for 10 ounces, and would have sold for less absent the alleged misleading representations.