An Illinois federal court recently ruled that a Kroger shopper’s proposed class action lawsuit over “SMOKED GOUDA” cheese could proceed, holding that plaintiff’s interpretation of the label to mean the cheese was smoked over hardwood was not “inherently fanciful or unreasonable.”

The complaint, brought by Valerie Kinman under the Illinois Consumer Fraud and Deceptive Trade Practices Act (“ICFA”), alleges that the front label of the “SMOKED GOUDA” product is misleading because it “does not disclose that all of the Product’s smoked flavor is from liquid smoke, prepared by pyrolysis of hardwood sawdust, instead of being smoked over hardwoods.”  In denying Kroger’s motion to dismiss the complaint for failure to plead reasonable consumer deception, the court reasoned that the word “smoked” has at least two meanings—(1) “cured over burning wood” or (2) “an adjective that describes a flavor”—and is therefore ambiguous.  The phrase “distinctive, smoky flavor” on the front of the package did not resolve that ambiguity, moreover, because that phase, too, is subject to multiple interpretations, including that the cheese has such a flavor resulting from the process of smoking over hardwood.

The court similarly rejected Kroger’s argument that the disclosure of “smoky flavor” in the ingredient list dispelled any consumer deception.  Had the front label contained the phrases “smoke flavored,” “smoke flavoring,” or “smoke flavor added,” the court reasoned, “it would have been clear that the statement ‘SMOKED GOUDA’ did not mean the cheese was cured over burning hardwood.”

This case is part of a recent trend of growing flavor litigation targeting claims like “fudge,” “butter,” “berry,” and “vanilla.”

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Photo of Nicole Patolai Nicole Patolai

Nicole Patolai is an associate in Covington’s Los Angeles office. Her practice focuses on white collar defense and investigations. Prior to joining the firm, Nicole worked as a judicial extern for the Honorable Stephen V. Wilson in the United States District Court for…

Nicole Patolai is an associate in Covington’s Los Angeles office. Her practice focuses on white collar defense and investigations. Prior to joining the firm, Nicole worked as a judicial extern for the Honorable Stephen V. Wilson in the United States District Court for the Central District of California.

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.