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.Continue Reading Court Allows False Advertising Claims Over Kroger’s “Smoked Gouda” to Proceed