False Advertising Case Claims Supermarket’s ‘Smoked’ Cheese Is Not Really Smoked

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On January 27, 2021,  Michael Fleischer (“Plaintiff”) filed a class action lawsuit in the Eastern District of New York against supermarket chain Aldi Inc. (“Aldi”) for allegedly misrepresenting the source of the smoke flavor in its Smoked White Cheddar Cheese. Specifically, the complaint in this false advertising case alleges that Aldi misled consumers in failing to adequately disclose the fact that the cheese was flavored artificially using liquid smoke.  The complaint seeks injunctive relief and attorneys’ fees, as well as actual and statutory damages. 

Up to No Gouda? What Does the Complaint Allege?

Aldi’s Alleged Mislabeling 

According to the complaint, there are two ways to add a smokey flavor to food. First, we have been preserving food for thousands of years by exposing food to smoke that has been naturally created by burning wood. This method naturally imbues food with flavors from various phenol compounds contained in the smoke.  A second, more recent, method utilizes a “smoke flavor” that comes from “smoke condensed into liquid form.” The complaint alleges that this liquid smoke does not provide the same “rich, layered taste” found in naturally smoked products. 

Plaintiff claims that because Aldi’s cheese is identified as “Smoked White Cheddar Cheese,” he and other consumers expected its advertised smokey flavor to come from exposure to real wood smoke.  Instead, the cheese’s ingredients list states that it contains “natural smoke flavor.” Because of this, the complaint claims that Aldi’s product obtains its flavor from liquid smoke. Notably, the complaint does not explain how plaintiff concluded that the product contained liquid smoke. The difference between natural smoking and using liquid smoke is significant according to the complaint. The complaint cites to the Food and Drug Administration’s (“FDA”) rules regarding proper food labeling under 21 CFR 101.22, which prohibit companies from claiming that artificially flavored foods have been “smoked.” Plaintiff also alleges that this false advertising case is supported by prior FDA regulatory actions, including warning letters that the FDA has issued to companies that have also improperly labeled foods as “smoked,” even though they only contained smoke flavorings. 

Preventing False Advertising Cases

Consumers rely on packaging to accurately reflect whether food is flavored using liquid smoke or if it was exposed to smoke naturally created by burning wood. Accordingly, Plaintiff seeks to represent a class of all purchasers of the cheese who reside in all states of the Union, except Illinois, California, Massachusetts and New Jersey. In addition to various common law claims, Plaintiff alleges that Aldi violated Section 349 of New York’s General Business Law (“GBL”), which prohibits businesses from engaging in deceptive acts and practices. The complaint also discusses purported violations of GBL Section 350, which prohibits false advertising. GBL Section 350 allows consumers to seek statutory damages of up to Five Hundred Dollars ($500.00) per violation. While GBL Section 349 allows consumers to seek actual damages or statutory damages of up to Fifty Dollars ($50.00), it also contains a provision allowing for attorneys’ fees. 

Plaintiff alleges that Aldi knew, or should have known, that consumers would be misled into believing that the cheese had been naturally smoked. Because naturally obtained smoke flavor is important to Plaintiff and other consumers, Aldi’s failure to properly label its cheese had a material bearing on the price that Plaintiff was willing to pay for its product. Therefore, Plaintiff claims that he was misled and damaged within the meaning of the GBL. 

As we have written in the past, class action attorneys frequently bring false advertising cases against companies that allegedly mislabel food. The Federal Trade Commission has also been very active in this space. Accordingly, businesses face potentially significant regulatory and civil liability if they engage in false advertising or deceptive product labeling. If you need assistance reviewing your advertising and marketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Photo by NastyaSensei from Pexels

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