On May 27th, the United States District Court for the Northern District of Illinois Eastern Division granted in part and denied in part, Defendant’s motion to dismiss a false advertising class action lawsuit which alleged that The Kroger Co. misled consumers by implying that its “Smoked Gouda” sliced cheese was cheese smoked over hardwood. The ingredient list of the cheese states that the cheese contains “added smoked flavor” which Plaintiff alleges comes from liquid smoke. Plaintiff alleges this is a material omission under the Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFA).

The court denied Defendant’s motion to dismiss Plaintiff’s ICFA claim, finding that Plaintiff’s interpretation of the label was not “fanciful, illogical, or implausible.” The court noted that “smoked” was ambiguous and could be interpreted multiple ways–including cheese smoked over hardwood or smoke flavoring additives–holding a reasonable consumer could be misled by the “Smoked Gouda” label.

The court granted the motion to dismiss Plaintiff’s common-law fraud claim without prejudice and Plaintiff’s claim for negligent misrepresentation with prejudice. Plaintiff’s claim for negligent misrepresentation is barred by the economic loss doctrine (Moorman doctrine), which denies remedies for disappointed commercial expectations. Plaintiff may file an amended complaint by June 28, 2022.