Reinitz v. Kellogg Sales Company

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROBERTA REINITZ, individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

)

v. ) Case No. 21-cv-1239-JES-JEH

)

KELLOGG SALES COMPANY, )

)

Defendant. )

ORDER AND OPINION

This matter is now before the Court on Defendant’s Memorandum and Motion (Doc. 6)

to Dismiss and Plaintiff’s Memorandum in Opposition (Doc. 10). Defendant has filed a Reply

and, with leave of Court, Supplemental Authority in the form of a recently published order in

Chiappetta v. Kellogg Sales Co., No. 21-3545 (N.D. Ill. Mar. 1, 2022). For the reasons indicated

herein, Defendant’s Motion to Dismiss is GRANTED, although Plaintiff will be given leave to

replead.

I. BACKGROUND

The following facts are taken from Plaintiff’s Complaint, which the Court accepts as true

for the purposes of a motion to dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d 633,

639 (7th Cir. 2015). Plaintiff filed a complaint on behalf of herself and the putative class of

Illinois, Iowa, and Arkansas consumers who purchased Defendant Kellogg’s Frosted Chocolate

Fudge Pop-Tarts (“Fudge Pop-Tarts”) during the applicable statutes of limitations. (Doc. 1 at 11).

Plaintiff complains that, despite the name and the chunk of fudge pictured on the label, Fudge

Pop-Tarts do not contain milk and butter, collectively “milkfat,” ingredients which she claims are

integral to fudge. The ingredients on the back of the package are listed as sugar, various oils,

whey, and cocoa, among others. (Doc. | at 7).

Plaintiff asserts that she would not have purchased the Fudge Pop-Tarts, or would not

have paid a premium price for them, had she known the product “lack[ed] ingredients essential to

fudge — butter and milk — and substitute[d],” “lower quality and lower-priced,” “vegetable oils

and whey.”! (Doc. | at 7). A copy of the label and packaging is reproduced below:

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Plaintiff claims that the labeling was false, intended to deceive the consumer in violation

of the Illinois Consumer Fraud Act (““ICFA”), 815 ILCS 505/1 et seq.; the Jowa and Arkansas

consumer fraud acts; state law express and implied warranties of merchantability and the

Magnuson Moss Warranty Act (““MMWA”), 15 U.S.C. §§ 2301, et seq.; and resulted in tortious

negligent misrepresentation, common-law fraud, and unjust enrichment.

Plaintiff asserts that she has been economically injured in paying for Fudge Pop-Tarts not

made with milkfat. She also requests injunctive relief, asserting that members of the putative

class continue to face injury as they may well purchase the Fudge Pop-Tarts unaware that they do

| Whey is a liquid milk protein expelled during the cheese-making process. What Is Whey and How Is It Used?

(thespruceeats.com)

not contain milkfat. Plaintiff requests that the Court order that Defendant stop the allegedly

deceptive practices and representations, disgorge profits, pay restitution to the class members,

and pay punitive damages, fees, and costs.

Kellogg has moved to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim; and to dismiss the claim for injunctive under Federal Rule of

Civil Procedure 12(b)(1), for lack of standing. Plaintiff responds that she is not required, at the

pleadings stage, to establish that the use of the term fudge is clearly misleading. She need only

establish that her interpretation of the labeling is facially plausible. Bell v. Publix Super Markets,

Inc., 982 F.3d 468, 494 (7th Cir. 2020) (Kanne, J. concurring). Plaintiff asks that the Court deny

Defendant’s motion to dismiss or, in the alternative, grant her leave to file an amended

complaint.

II. LEGAL STANDARDS

Rule 12(b)(6) Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of a complaint, but not the merits of a case. McReynolds v. Merrill Lynch & Co., 694 F.3d 873,

878 (7th Cir. 2012); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When

considering such motions, courts “construe the complaint in the light most favorable to the

plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in

her favor.” Tamayo v. Blagovich, 526 F.3d 1074, 1081 (7th Cir. 2008). A court may grant a

motion to dismiss under Rule 12(b)(6) only if a complaint lacks sufficient facts to “state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.

Although a facially plausible complaint need not give “detailed factual allegations,” it

must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. These requirements ensure that a

defendant receives “fair notice of what the . . . claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555. The required level of factual specificity rises with the complexity of

the claim. “A more complex case ... will require more detail, both to give the opposing party

notice of what the case is all about and to show how, in the plaintiff's mind at least, the dots

should be connected.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).

Fraud claims, including those brought under the ICFA, must also meet the heightened

pleading standard of Federal Rule of Civil Procedure 9(b): “Fraud or Mistake; Conditions of

Mind. In alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind

may be alleged generally.” See also, Benson v. Fannie May Confections Brands, Inc., 944 F.3d

639, 646 (7th Cir. 2019); Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir.

2011). In practice, this means that a plaintiff “must identify the ‘who, what, when, where, and

how’ of the alleged fraud.” Benson, 944 F.3d at 646 (quoting Vanzant v. Hill’s Pet Nutrition,

Inc., 934 F.3d 730, 738 (7th Cir. 2019)).

Rule 12(b)(1) Motion to Dismiss

As noted, Defendant asserts that Plaintiff lacks standing to assert a claim for injunctive

relief, thus divesting the Court of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). “As

the party invoking federal jurisdiction, a plaintiff bears the burden of establishing the elements of

Article III standing.” MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., No.17-

01537, 2018 WL 340020, at *2–3 (C.D. Ill. Jan. 9, 2018) (citing Silha v. ACT, Inc., 807 F.3d 169,

173 (7th Cir. 2015)). To establish standing plaintiff must have (1) suffered an injury in fact, (2)

that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” MAO-MSO, 2018 WL 340020, at *2–3 (citing

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). Where, as here, there is a facial challenge

to the court’s subject matter jurisdiction, the plaintiff bears the burden of establishing that the

court has jurisdiction over the matter. Silha, 807 F.3d at 173. If a court does not have subject

matter jurisdiction over a claim, it must be dismissed. In re Chicago, Rock Island & Pac. R.R.

Co., 794 F.2d 1182, 1188 (7th Cir. 1986).

III. ANALYSIS

A. ICFA

The ICFA safeguards “consumers, borrowers, and business persons against fraud, unfair

methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil

Co., 612 F.3d 932, 934 (7th Cir. 2010) (internal citation and quotation marks omitted). Under the

ICFA, “a statement is deceptive if it creates a likelihood of deception or has the capacity to

deceive.” Pepperidge Farm, Inc., 2022 WL 203071, at *3 (citing Bober v. Glaxo Wellcome PLC,

246 F.3d 934, 938 (7th Cir. 2001)). To state an ICFA claim, a plaintiff must allege “(1) a

deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff

rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a

course of conduct involving trade or commerce.” Siegel, 612 F. 3d at 934. It is not enough to

show the “mere possibility of fraud,” as Plaintiff must show that fraud is a “necessary or

probable inference from the facts alleged.” Spector v. Mondelēz Int’l, Inc., 178 F. Supp. 3d 657,

672 (N.D. Ill. 2016) (quoting People ex rel. Hartigan v. E & E Hauling, Inc., 607 N.E.2d 165,

174 (Ill. 1992)). This is, that a reasonable consumer would be deceived by the labeling of the

product. The reasonable consumer test requires “a probability that a significant portion of the

general consuming public...acting reasonably in the circumstances, could be misled.” Pepperidge

Farm, Inc., 2022 WL 203071, at *3 (internal citation omitted). When considering an ICFA claim,

“a court may dismiss the complaint if the challenged statement was not misleading as a matter of

law.” Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 756 (N.D. Ill. 2015) (citing Bober v. Glaxo

Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001). However, “if a plaintiff’s interpretation of a

challenged statement is not facially illogical, implausible, or fanciful, then a court may not

conclude that it is nondeceptive as a matter of law. Bell, 982 F. 3d 493 (emphasis in original).

Plaintiff describes fudge as a “sweet based on milkfat, which is how scholars of

confectionery, home cooks, and everyone in between, has understood this food for over a

century.” Plaintiff cites various dictionary definitions of fudge which are consistent with this

statement. In her complaint, Plaintiff also cited to Molly Mills whom she identifies as “one of

today’s leading authorities on fudge.”

Defendant disputes that fudge must contain milkfat, citing portions of Ms. Mills’s book,

asserting that, as it was identified in the complaint, it is incorporated by reference and may be

considered in a motion to dismiss. Defense counsel has provided copies from Ms. Mills’s book

(Doc. 7-2), which contains 40 fudge recipes, 2 along with an affidavit as to the truth and accuracy

of the copy. The Court has viewed a number of the fudge recipes and agrees that some are not

made with milkfat. (Doc. 7-2 at 10, 12, 23, 30, 36, 38). While Ms. Mills indicates that fudge is

2 Molly Mills, Come Get Your Fudge: 40 Tasty and Creative Fudge Recipes for Everyone (2019).

“most commonly made from butter, milk, sugar, and chocolate[,]” she provides various recipes

for fudge which do not contain butter and milk. (Doc. 7-2 at 43) (emphasis added).

Defendant claims that its product may be described as fudge as it has a chocolatey fudge-

like taste, even though not made with milk and butter. Defendant asserts that “fudge” is not so

specific a term that a reasonable customer would be deceived when buying “fudge” not made

with milkfat. See Manley v. Hain Celestial Group, Inc., 417 F. Supp. 3d 1114, 1119 (N.D. Ill.

2019) (citing Phillips v. DePaul Univ., 385 Ill. Dec. 823, 834, 19 N.E.3d 1019 (1st Dist. 2014)

(finding while information “could certainly have been more specific,” it was not actionable under

the ICFA as it made “no affirmative misrepresentation.”)

While Plaintiff identifies evidence to support that credible third parties opine that

“milkfat is the central component of fudge,” Ms. Mills, whom Plaintiff has identified as an

authority, has formulated a variety of fudge recipes in which milkfat is not an ingredient.

Whether or not experts agree, Plaintiff fails to support that the average consumer would believe a

fudge product must, of necessity, contain milkfat. See, generally, Harris v. Kellogg Sales Co.,

No. 21-1040 (S.D. Ill. May 24, 2022) (Doc. 23) (dismissing with prejudice the claim that

Strawberry Pop-Tarts had an insufficient amount of strawberry and that the description and

picture on the label were misleading). There, the court found that plaintiff’s interpretation of the

representations on the label was not consistent with “how the public understands and reacts to

product advertising.” Id. at 5.

The Court does not find Plaintiff’s pleadings establish “a probability that a significant

portion of the general consuming public . . . could be misled.” Beardsall v. CVS Pharmacy, Inc.,

953 F. Ed 969, 973 (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016) (internal

citations and quotation marks omitted). See Chiappetta, No. 21-3545 (N.D. Ill. Mar. 1, 2022),

(finding “no reasonable consumer could conclude,” based merely on the use of the term

“Strawberry” and the picture on the package, that a Strawberry Pop-Tart contained only

strawberries, not other fruits, and food dye). Here, too, Plaintiff fails to support that a chocolate-

tasting fudge product made from oils and whey would mislead a reasonable consumer. See also,

Stiles v. Trader Joe’s Co., No.16-4318, 2017 WL 3084267, at *4 (C.D. Cal. Apr. 4, 2017),

(dismissing claim that “Frosted Maple and Brown Sugar Shredded Bite Size Wheats” and

“Oatmeal Complete Maple and Brown Sugar” falsely suggested that the products contained

maple syrup or maple sugar where the products had a maple flavor and were not advertised as

containing maple syrup or maple sugar).

Defendant claims, even if it were otherwise, the term “fudge” refers to the taste of the

product, not its ingredients. Defendant asserts that the packaging and description “accurately

suggests that Frosted Chocolate Fudge Pop-Tarts taste like chocolate and look like the toaster

pastries depicted on the front label.” (Doc. 7 at 11). Defendant likens this to cases where the use

of “vanilla” was not found misleading, although the product did not contain vanilla, as the term

referred to the product’s flavor, and allowed consumers to differentiate between the producer’s

various flavors of almond milk. See Cosgrove v. Blue Diamond Growers, No. 19-8993, 2020 WL

7211218, at *1 (S.D.N.Y. Dec. 7, 2020); Stiles, 2017 WL 3084267, at *4 (C.D. Cal. Apr. 4, 2017)

(finding no deception where products were maple flavored but did not contain maple syrup or

maple sugar).

Plaintiff offers the undeveloped argument that vanilla is a flavor designator not an

ingredient, while fudge is an ingredient, not a flavor. It is clear that vanilla can be both a flavor

and an ingredient and Plaintiff does not support that the same cannot be said of fudge.

Plaintiff additionally asserts fraud due to the alleged ambiguity of the label. Plaintiff

claims, that while Defendant offers one non-deceptive interpretation, it is susceptible to other

interpretations and her interpretations is facially plausible. See Bell, 982 F.3d at 494. Defendant

disagrees, citing Pepperidge Farm, Inc., 2022 WL 203071, at *4 (quoting Fuchs v. Menard,

Inc., No. 17-01752, 2017 WL 4339821, at *3 (N.D. Ill. Sept. 29, 2017)). “[A] court may

dismiss an ICFA claim at the pleading stage if the statement is ‘not misleading as a matter of

law.’” As Plaintiff has failed to support that a reasonable consumer would expect fudge to

contain milkfat, she fails to establish that a consumer who purchased non-milkfat-containing

Fudge Pop-Tarts would be deceived. As a result, the ICFA claim is dismissed.

Defendant notes that Plaintiff’s complaint made a passing reference to Food and Drug

Administration (“FDA”) Regulation 21 C.F.R. § 102.5 which prohibits the misbranding of

foods and requires that the common or usual name of a food “accurately identify or describe, in

as simple and direct terms as possible, the basic nature of the food or its characterizing

properties or ingredients.” Defendant objects to a claim based on this regulation on several

grounds, including that 21 C.F.R. § 102.5 does not provide for a private right of action. Plaintiff

has responded, refuting the suggestion that she is asserting an FDA claim, and affirming that her

claim is brought pursuant to the ICFA. As Plaintiff has affirmatively waived any purported FDA

claim, the Court does not further consider this issue.

B. State Consumer Fraud Statutes

Defendant cites cases, and Plaintiff does not dispute, that the Arkansas and Iowa state

fraud statutes use a “reasonable consumer” standard similar to that of the Illinois ICFA statute.

(Doc. 7 Fn. 2). As the Court finds that Plaintiff has failed to sufficiently plead a colorable ICFA

claim, it finds the same as to any claims alleged under the Arkansas and Iowa fraud statutes.

C. Breach of Express and Implied Warranties and the Magnuson Moss Warranty

Act

Defendant asserts that Plaintiff cannot proceed on her breach of warranty claims as she

cannot establish that the advertising was likely to mislead a reasonable consumer; and that there

was no privity of contract between Plaintiff and Kellogg, so as to render Kellogg liable for

breach of warranty. To proceed on an Illinois claim for breach of express warranty, Plaintiff must

sufficiently plead that the defendant: “(1) made an affirmation of fact or promise; (2) relating to

the goods; (3) which was part of the basis for the bargain; and (4) guaranteed that the goods

would conform to the affirmation or promise.” O’Connor v. Ford Motor Co., 477 F. Supp. 3d

705, 714 (N.D. Ill. 2020). In a claim for breach of an implied warranty, plaintiff must allege that

“‘(1) the defendant sold goods that were not merchantable at the time of sale; (2) the plaintiff

suffered damages as a result of the defective goods; and (3) the plaintiff gave the defendant

notice of the defect… To be merchantable, the goods must be, among other things, fit for the

ordinary purpose for which the goods are used.” Baldwin v. Star Scientific, Inc., 78 F. Supp. 3d

724, 741 (N.D. Ill. 2015).

Plaintiff asserts that Defendant breached express and implied warranties as, despite the

label’s ‘“affirmation of fact or promise’ that the filling was ‘comprised of a non-de minimis

amount of milk fat ingredients,’” this was not the case. The Court has already found, however,

that the labeling on the Fudge Pop-Tarts would not lead a reasonable consumer to believe that the

Fudge Pop-Tarts contained milkfat. See Chiappetta, No. 21- 3545 (Doc. 18) (dismissal of ICFA

claim that product packaging was misleading, was “fatal to [plaintiff’s] claims for breach of

express and implied warranties.”) (citing Spector, 178 F. Supp. 3d 657, 674 (N.D. Ill. 2016)).

As Plaintiff does not have viable state-law warranty claims, she cannot proceed under

Manguson-Moss. See Pepperidge Farm, 2022 WL 203071, at *5. “In claims brought under the

MMWA, state law governs the creation of implied warranties…Since Illinois law prevails and

this Court has dismissed both the express and implied warranties for failing to properly allege a

state law claim, any MMWA counts are dismissed as well.” As these claims are dismissed, the

Court need not consider Defendant’s additional argument that there was no privity of contract

between Plaintiff and Kellogg.

D. Common-Law Claims negligent misrepresentation, common-law fraud, and

unjust enrichment

Defendant claims, generally, that the negligent misrepresentation and fraud claims must

be dismissed as Plaintiff has failed to sufficiently plead that Kellogg’s labeling was deceptive;

that it would have mislead a reasonable consumer. See generally Avon Hardware Co. v. Ace

Hardware Corp., 998 N.E.2d 1281, 1287–88 (Ill. Ct. App. 2014) (fraud and negligent

misrepresentation claims require false statement of material fact). Defendant also alleges

specific additional reasons for dismissing the negligent misrepresentation and fraud claims.

1. Negligent Misrepresentation

Plaintiff claims, and Defendant denies, that the label and packing of the Fudge Pop-Tarts’

negligently misrepresented that the product contained a milkfat-based fudge. Defendant further

asserts that this claim may not proceed due to the Moorman or “economic loss rule” which

prevents recovery in tort for a purely economic loss. See Moorman Manufacturing Co. v.

National Tank Co., 91 Ill. 2d 69, 86, 435 N.E.2d 443, 450 (1982) (“The remedy for economic

loss, loss relating to a purchaser’s disappointed expectations . . . lies in contract.”). Defendant

asserts that Moorman applies where Plaintiff’s claimed injury is solely economic, the money

she spent purchasing the Fudge Pop-Tarts. See (Doc. 7 at 18) (citing Manley, 417 F. Supp. 3d at

1120–21, applying Moorman to consumer’s negligent misrepresentation claim).

Plaintiff responds with the undeveloped argument that Defendant had a non-delegable

duty outside of contract due to its corporate expertise and international status. Plaintiff cites

Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 636 N.E.2d 503, 515

(Ill. 1994), where it was held that professionals such as accountants and attorneys are learned

intermediaries who may be liable in tort even if the client has suffered only economic loss.

Plaintiff offers nothing, however, to support that this reasoning applies to a producer of breakfast

products. See Manley, 417 F. Supp. 3d at 1120-21 (applying Moorman as a bar to a tort action

against a manufacturer of sunscreen, as defendant was not “in the business of supplying

information for the guidance of others in their business transactions…”). Here, as in Manley,

there is no allegation that Defendant Kellogg was in the business of supplying guidance or

information so as to make it liable in tort for negligently providing the same.

2. Common Law Fraud

To allege common law fraud under Illinois law, Plaintiff must sufficiently plead scienter,

that Kellogg “intentionally made a false statement of material fact…for the purpose of inducing

reliance thereon.” Ollivier v. Alden, 634 N.E.2d 418, 424 (Ill. App. Ct. 1994). Fraud must be “the

necessary or probable inference’ from the facts alleged...” (Doc. 7 at 19) (quoting Connick v.

Suzuki Motor Co., 675 N.E.2d 584, 591 (1996)). While Plaintiff asserts that Defendant had

“knowledge that the Product[’s] [filling] was not consistent with its representations,” she does

not support this. For its part, Defendant has asserted that “fudge” need not contain milkfat and

Plaintiff’s authority, Ms. Mills, has crafted at least six fudge recipes in which milkfat is not an

ingredient. Consequently, Plaintiff fails to establish that the “fudge” description on the label was

a false statement, or that Defendant intentionally made a false statement, the scienter element

necessary to plead fraud.

Unjust Enrichment

Defendant rightly asserts that Plaintiff cannot proceed with a claim for unjust enrichment

where she has failed to successfully plead an action for fraud. (Doc. 7 19-20) (citing Cleary v.

Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011) “[I]f an unjust enrichment claim rests on

the same improper conduct alleged in another claim, then the unjust enrichment claim will be

tied to this related claim—and, of course, unjust enrichment will stand or fall with the related

claim.” This claim, too, is dismissed.

E. Claim for Injunctive Relief

Plaintiff has requested injunctive relief, that Defendant be ordered to correct the alleged

misrepresentations and refrain from engaging in the challenged practices. Here, however, the

Court has dismissed all claims arising from the complaint, and as “there is no continuing

violation of federal law,” the Court does not have the authority to order injunctive relief. Green v.

Mansour, 474 U.S. 64, 71(1985). Even if it were otherwise, Plaintiff fails to sufficiently plead

that she is at threat of future injury. See Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir.

2017) (citing Benson v. Fannie May Confections Brands, Inc., No. 17-3519, 2018 WL 1087639,

at *5 (N.D. Ill. Feb. 28, 2018) (finding as plaintiffs were “already aware of Fannie May’s alleged

deceptive practices, Plaintiffs cannot claim they will be deceived again in the future... absent

some concrete basis to conclude that the plaintiffs will or must purchase the product again in the

future and be deceived, they cannot meet the standing requirements for injunctive relief

claims.”).

Plaintiff is now fully aware that the Fudge Pop-Tarts do not contain milkfat, so she is not

susceptible to “being revictimized.” Benson, 2018 WL 1087639, at *5. While Plaintiff pleads that

she wishes to consume Kellogg’s Fudge Pop-Tarts, provided they are made with milk and butter,

Kellogg is not obligated to indulge her by producing such a product.

Defendant adds the additional argument that Plaintiff may not “back door” a claim for

standing. That is, since Plaintiff is personally aware that Fudge Pop-Tarts do not contain milkfat,

she cannot assert standing through class members who are not aware, and at risk of future

economic injury. Freeman v. MAM USA Corp., 528 F. Supp. 3d 849, 857 (N.D. Ill. 2021) (no

standing for injunctive relief where “there is no showing of any real or immediate threat that the

plaintiff will be wronged again…” See also Mednick v. Precor, Inc., No. 14-3624, 2016 WL

5390955, at *9 (N.D. Ill. Sept. 27, 2016) (finding plaintiffs ‘“cannot rely on the prospect that

other consumers may be deceived’ to boost their own standing”).

Nonetheless, Plaintiff claims that injunctive relief is warranted as the alleged fraud

continues, citing Muir v. NBTY, Inc., No. 15-cv-9835, 2016 WL 5234596, at *10 (N.D. Ill. Sept.

22, 2016). There, the court found plaintiff had standing for purposes of injunctive relief where

defendant allegedly continued to sell the product “in a false, misleading, unfair, and deceptive

manner.” See id. (citing Camasta v. Jos. A. Bank, Clothiers, Inc., No. 12-7782, 2013 WL 474509,

at *6 (N.D. Ill. Feb. 7, 2013) (determining plaintiff had standing as “there is a substantial danger

that [the defendant's] wrongful retail practices will continue.”)). Here, of course, the Court has

not found wrongful conduct on the part of Defendant and finds no ongoing risk which would

confer standing for purposes of injunctive relief.

V. CONCLUSION

The Court has dismissed all of Plaintiff’s claims and, given the facts, it may be difficult

to cure in a subsequent pleading. As previously noted, one court has dismissed a similar case

without prejudice, finding that the picture and “Strawberry” designation on the label would not

mislead a reasonable consumer. Chiappetta, No. 21-3545. Although given leave to amend, the

plaintiff chose not to do so. In the other cited Strawberry Pop-Tart case, Harris, No. 21-1040, the

court dismissed with prejudice, finding plaintiff’s interpretation of the label and advertising were

unreasonable and not representative of the way it would be interpreted by a reasonable consumer.

Id. at 5.

The Plaintiff here has also failed to adequately plead that her interpretation of the picture

and “Fudge” designation on the label is one shared by “a significant portion of the general

consuming public…” Beardsall, 953 F. Ed 969, 973. Still, the Court cannot foreclose the

possibility that she may yet be able to plead such a claim. Out of an abundance of caution,

Plaintiff will be given a final opportunity, within 14 days, to file an amended complaint.

Defendant’s Motion to Dismiss (Doc. 6), is GRANTED.

Signed on this 2nd day of June, 2022.

______s/James E. Shadid__________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE