“Smoked” Cheese’s Flavor Obtained Without Smoking, Plaintiff Argues

A plaintiff has filed a putative class action alleging Dietz & Watson Inc. misleads consumers by naming its product “Smoked Provolone Cheese” when the cheese’s smoky flavor comes from “smoke flavor” rather than “slow cooking over a fire of wood chips.” Jones v. Dietz & Watson Inc., No. 20-6018 (E.D.N.Y., filed December 9, 2020). The plaintiff alleges the cheese should be labeled “Natural Smoke Flavored Provolone Cheese” under U.S. Food and Drug Administration regulations on characterizing flavors. “Even if consumers were to view the ingredient list, a reasonable consumer would have no reason to know that listing ‘smoke flavor’ forecloses the possibility the Product was also subject to some smoking,” the complaint asserts. “However, the Product has not undergone any real smoking, which is deceptive and misleading to consumers.” The plaintiff alleges violations of New York’s consumer-protection statutes, the Magnuson-Moss Warranty Act, fraud and negligent misrepresentation.