A Wisconsin federal court narrowed a proposed class action against Kroger Co. over its “Private Selection” artificially flavored “smoked” Gouda cheese, tossing claims for breach of warranty, fraud, and unjust enrichment. The judge allowed the case to move forward under Wisconsin’s Deceptive Trade Practices Act, addressing the plaintiff’s claims that Kroger’s “smoked” cheese product labeling was deceptive, confusing, or misleading.

The class action was filed last year in Wisconsin by lead plaintiff Stacey Castle who alleges Kroger falsely advertised the cheese product. Castle claimed she purchased sliced “smoked” Gouda cheese, described on the label as having a “distinctive smoky flavor,” at Kroger-owned supermarkets in 2021. She said she relied on the front label’s representations as a reference to the cheese having been smoked “over hardwoods” and that its taste would reflect it “being smoked on hardwoods.” Kroger argues the ingredients list on the back of the package discloses that the cheese contains “smoke flavor.”

Wisconsin law states that the packaging of a consumer commodity must “clearly and conspicuously identify the commodity contained in that package, and that the declaration may not be false, deceptive, or misleading. Ingredients or components that are not present in the commodity in substantial or significantly effective amounts may not be featured in the declaration of identity.” Castle alleged that the flavoring components derived from smoking a cheese over hardwoods are not present in the product at issue, and thus the product’s identity – “Smoked Gouda” – is false, deceptive, and misleading.

While the cheese product had not been subject to any smoking, and Castle claims its flavor is derived from a liquid smoke additive and other flavor compounds, she contended she paid a premium price for the cheese expecting that it would be subject to at least some “actual smoking.” Absent the product label’s “smoked” references, Castle argues, she would not have paid as much as she did for the item.

The Court weighed the opinions in previous “smoked” cheese disputes, considering the notion that “smoked” could refer either to the flavor of the cheese, or to a process used to create such flavor. It determined that Castle plausibly alleged that the labeling was deceptive, confusing, or misleading because a reasonable consumer could believe “smoked” referred to a process rather than a flavor. Whether a consumer would be deceived is a question of fact to be determined at trial.

Castle v. Kroger, 2022 WL 4776319 (E.D. Wis. 2022)