Where there is smoke, there is fire, or is there?

Womble Bond Dickinson

Womble Bond Dickinson

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Photo by Jez Timms on Unsplash

When you buy and eat smoked nuts and cheeses, do you have images of smoke from a wood fire wafting up from smokers as you savor those snacks? Have you ever thought about how your nuts and cheeses were smoked? Many of those products have never been inside a smoker or smokehouse. Instead, the smoke flavor comes from added flavorings or liquid smoke. If a label states or implies that a food is smoked, should the product actually have to have acquired its smoke flavor by being exposed to smoke created by smoldering wood? If the product did not gain its flavor from actual smoke, should the label disclose that, and, if so, how? That is the issue at the heart of recent lawsuits filed regarding smoked nuts and cheeses. https://classactionsreporter.com/wp-content/uploads/DIetz-Watson-22Smoked22-Gouda-Compl.pdf; https://www.classaction.org/media/colpitts-v-blue-diamond-growers.pdf.

FDA regulations, last updated in April of 2019, require that food labels which make, either directly or indirectly, a representation about a characterizing flavor use certain language to identify if: (1) the flavor comes solely from its suggested source (such as strawberries, raspberries, oranges, etc.); (2) n part from its suggested source and in part from some other source, or (3) whether the flavor comes from an artificial source.

If the suggested source is sufficient to create the characterizing flavor, the word “flavored” does not have to be used on the label, even if other natural flavors are included. If the characterizing flavor is created by natural flavors other than the characterizing flavor, in whole or in part, the label must contain the terms “flavored” or “with other natural flavors”. If the characterizing flavor is created with artificial flavors to create or reinforce the characterizing flavor, then the term “artificial flavors” is required to be stated on the label. If a characterizing flavor is created with both artificial and natural flavors, both “natural and artificial flavors” may be listed on the label, although it is not required by the FDA. 21 CFR 101.22(i). For smoke flavor specifically, if it is created by pyroligneous acid (liquid smoke) or any other artificial smoke flavor, then the label must state that the characterizing flavor comes from “artificial flavors.” 21 CFR § 101.22(h)(6).

Plaintiffs in the recent lawsuits regarding smoked almonds and smoked Gouda cheese claimed that manufacturers failed to disclose that the smoke flavor came from “natural flavors” instead of from wood smoke. The complaints asserted claims of misrepresentation, fraud, breach of warranty, and unjust enrichment. Class action certification was requested and attorneys’ fees were sought. Generally, FDA regulations require that the terms, flavored, natural flavors, artificial flavors, etc., have to appear in the ingredient list and also on the label wherever the name of the characterizing flavor is included. 21 CFR 101.22(i)(3). For both the nuts and cheese at issue in the recent lawsuits, natural smoke flavoring was included in the ingredient list, but it was alleged that the “natural flavors” label was not on the front of the label under the “smoked” description. For the smoked Gouda cheese at issue, the ingredient list, which included the listing of natural smoke flavor, was directly underneath the label’s description of the smoked Gouda cheese. The label of the smoked almonds at issue did not specifically state that the nuts were smoked, but the branding included the term “Smokehouse.” Interestingly, many of the brands of smoked almonds on the market which derive their smoke from natural flavors (and not wood smoke), even though branded as “smoked almonds” do not state on the front of the label that they are naturally flavored. The same is true of some smoked cheeses which are naturally flavored, and not smoked in a smoker.

It remains to be seen whether “smoked” as a characterizing flavor will be treated the same as fruits, vegetables, spices, etc., flavors which must be included on the front of the label as natural or artificial flavors when not created by the fruit, vegetable or spice itself. If these suits are successful, then labels on other currently available smoked nuts and cheeses products may undergo changes. Perhaps some specific language will be developed for products smoked in a smokehouse or smoker so we will know if smoke means fire.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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