Snack Pack Class Action Says Pudding Isn’t Made With Real Milk

Conagra Brands Inc. faces a class action lawsuit after a consumer claims the labels on their Snack Pack brand chocolate fudge pudding is misleading.

Plaintiff Jennifer Mena says the product claims to be made with real milk, even though it is actually made from nonfat milk and palm oil.

Mena claims the representations on Snack Pack packaging include “Snack Pack,” “Pudding,” “Made With Real Milk” and shows a milk bottle overflowing with milk. The phrase “Made With Real Milk” contains an asterisk, which references another phrase stating that the product is “Made with Nonfat Milk.”

The Snack Pack class action asserts that milk is defined by the Food and Drug Administration (FDA) as 3.25% milkfat and 8.25% nonfat milk solids. Mena maintains that using nonfat milk instead of whole milk is not able to achieve an “equivalent organoleptic experience” that real milk would provide to consumers.

The plaintiff explains that the fat content in the Snack Pack comes from palm oil, which is a lower cost replacement for the milkfat in real milk or whole milk. She states that palm oil is only fat and does not have any vitamins, minerals or protein. 

If real milk was used instead of nonfat milk and palm oil, the Snack Pack chocolate fudge pudding would have higher recommended daily values for protein and calcium, Mena states. She mentioned examples of other similar products that disclose the presence of nonfat milk which does not create a misleading impression that their fat content is provided by real milk.

“Though nonfat milk is milk, it cannot be described as ‘real’ milk because ‘real’ is defined as referring to something in its original or authentic form, which would be milk before the fat is removed,” the Snack Pack class action lawsuit states.

The plaintiff notes that while there is no rule against including nonfat milk and palm oil, it is confusing and misleading to consumers to highlight “real milk” on the product when the most significant element of “real milk” is replaced with palm oil.

She states that the representations of “real milk” give consumers the impression that the Snack Pack’s fat content will come exclusively from milkfat.

Mena says that the defendant’s branding and packaging of the product is designed to deceive, mislead, and defraud the public. The defendant has reportedly sold more of the product at higher prices than it would have in the absence of this misconduct, which has resulted in additional profits at the expense of consumers.

The Snack Pack class action lawsuit maintains that the value of the product that the plaintiff purchased and consumed was materially less than its value as represented by the defendant. In addition, Mena claims that if she had known the truth about the product, she would not have purchased the product or would have paid less for it.

Mena says she would purchase the product again if she was assured that “real milk” meant it contained a minimal amount of milkfat instead of the fat content that is provided by palm oil.

Common questions of law and fact in the Snack Pack class action lawsuit include whether the defendant’s representations are misleading and if the plaintiff and potential Class Members are entitled to damages.

Mena explains that she and other putative Class Members desired to purchase and consume products which were as described and marketed by the defendant and expected by reasonable consumers, given the product type.

“The amount and proportion of the characterizing component, milkfat, has a material bearing on price or consumer acceptance of the Products because consumers are willing to pay more for such Products,” the Snack Pack class action lawsuit states.

In addition, the plaintiff says that the defendant misrepresented the substantive, quality, compositional, organoleptic, and nutritional attributes of the product. Mena says that she relied on the statements, omissions, and representations of the defendant and that the defendant knew or should have known the falsity of their statements.

The Snack Pack class action lawsuit states that the defendant had a duty to disclose and provide non-deceptive marketing of the product and knew or should have known that their representations were false and misleading. 

“The representations took advantage of consumers’ cognitive shortcuts made at the point-of-sale and their trust in the defendant, a well-known and respected brand or entity in this sector,” the plaintiff maintains.

Mena says that she reasonably relied on these negligent representations and omissions which served to induce the purchase of the product. 

“The Products represented and warranted their main source of fat was from milkfat when it was actually palm oil, a lower price and nutritionally lacking alternative,” the Snack Pack class action lawsuit goes on to state.

Did you purchase Conagra’s Snack Pack products thinking they contained real milk? Let us know in the comments section below.

The plaintiff is represented by Spencer Sheehan of Sheehan & Associates PC.

The Snack Pack Whole Milk Class Action Lawsuit is Jennifer Mena v. Conagra Brands Inc., Case No. 1:20-cv-04505, in the U.S. District Court for the Southern District of New York.

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