Kroger Private Selection “Smoked” Gouda Labeling Michigan, California Class Action

When a cheese is labeled as “smoked” Gouda, has it actually gone through a smoking process? The complaint for this class action bring suit against the Kroger Company, alleging that its Private Selection Smoked Gouda Sliced Cheese is labeled in a misleading manner, because the cheese is not truly smoked but merely has smoke flavor as an added ingredient.

Two classes have been proposed for this action:

• The Michigan Class is all persons in Michigan who bought the product during the applicable statutes of limitations.
• The California Class is all persons in California who bought the product during the applicable statutes of limitations.

Page 1 of the complaint shows an image of the product in its package, with the words “Smoked Gouda” prominently displayed and, in a smaller font, the words “distinctive, smoky flavor.”

Smoking is means of preserving protein-rich foods, like meat, cheese, almonds, and fish. The smoke usually comes from burning woods, and different woods provide different flavors.

However, in recent times, the flavor of smoke is often created by “smoke flavor,” which the complaint calls “smoke condensed into a liquid form.” However, the complaint claims that smoke flavor cannot supply the same complex, layered flavors as the process smoking over wood. Also, consumers these days prefer food without additives that are flavored only by a characterizing ingredient or by natural processing.

The complaint refers to an article in Food Safety News to allege, “The European Food Safety Authority (‘EFSA’) reported that many smoke flavorings added to foods contain compounds at levels which may pose a toxic risk when consumed.” It may therefore make a difference to consumers whether a product has been smoked or whether it simply contains added smoke flavor.

Federal and state regulations, the complaint claims, “require that a food’s front label disclose the source of any characterizing or main flavor.”

The Food and Drug Administration (FDA) requires different labeling for foods that have actually been smoked and those that have added smoke flavor. According to the complaint, the FDA deems it to be misleading to call a food “smoked” if it is not actually exposed to smoke but only contains smoke absorbed in a substance and added to food as a flavor.

In these situations, the complaint alleges, “the front label should state, ‘with added smoke flavor,’ ‘[with] natural smoke flavor,’ or ‘flavor added.’” It quotes the FDA as saying that smoke flavors that are added flavors should be declared as such on the front of the label, but if the flavors describe the smoking process, they should not be listed as ingredients.

The ingredient panel on the Kroger product lists “smoke flavor” as one of the ingredients. This is not revealed to consumers on the front label.

The complaint alleges that, because Kroger “fail[s] to disclose the addition of smoke flavor, consumers get the false impression the Product was made similarly to comparably labeled products and smoked over hardwood, when it was not.”

Article Type: Lawsuit
Topic: Consumer
Tags: "Smoked" Food Is Only Smoke-Flavored, Deceptive Advertising, Deceptive Labels