A proposed class of cheese buyers is suing Dietz & Watson Inc. in New York federal court, claiming that its smoked provolone cheese is falsely advertised because the cheese is made with “smoke flavor” instead of actually smoking the cheese in burning wood chips. Plaintiffs allege that the Dietz & Watson labels are not in compliance with FDA’s flavor labeling regulations, which state the following:

If the food is commonly expected to contain a characterizing food ingredient and the ingredient is present in a sufficient amount to independently characterize the flavor of the product (regardless of whether the food contains any added natural flavors), the name of the ingredient should simply accompany the product name.

However, if the product contains any artificial flavors simulating, resembling or reinforcing the characterizing flavor, the name of the food on the PDP must also be accompanied by the words “artificial” or “artificially flavored.”

If, on the other hand, the food contains only added natural flavor derived from the characterizing ingredient, the product identity statement must include the name of the characterizing flavor and the word “flavored,” and may include a description of the flavor as “natural.”

If none of the natural flavor used in the food is derived from the product whose flavor is simulated (i.e., if all of the natural flavor is from another source), the food in which the flavor is used must either be labeled with the name of the product from which the flavor is derived or be described as “artificially flavored.”  21 CFR 101.22.

The Dietz & Watson label states that the product is “piquant & full flavor,” but does not appear to disclose that flavoring is used in the product to provide the smokey flavor. The class pointed to a 2017 FDA Warning Letter that stated foods using added flavors instead of the smoking process must declare that fact on the front label, while descriptions of the smoking process should not be in the ingredient list.

The proposed class intends to represent buyers from New York and the other 49 states who bought the cheese. The suit brings claims under New York’s consumer protection statutes, as well as for negligent misrepresentation, breach of express and implied warranty, fraud and unjust enrichment. The complaint seeks unspecified money damages and an injunction barring Dietz & Watson from continuing to label its smoked provolone as it currently does.