Smokehouse Almonds Suit Is Not All Smoke and Mirrors

While federal courts across the country have been smoking out complaints filed by prolific claims attorney Spencer Sheehan left and right, one line of cases in which Sheehan and other plaintiffs’ attorneys have been able to crack the nut on is “smokehouse” flavored products. An Illinois federal court has allowed a Sheehan-filed suit alleging consumers were misled into believing the defendant’s “Smokehouse Almonds” are flavored in an actual smokehouse to proceed past the pleadings stage. Like its predecessors, the underlying complaint alleged that the product’s “Smokehouse Almonds” label misleads consumers into believing that the almonds are flavored through a smokehouse process (instead of through added liquid smoke flavoring).

The complaint alleged claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of express warranty, negligent misrepresentation, fraud, and unjust enrichment. The defendant moved to dismiss the complaint, arguing that the plaintiff lacked Article III standing because she failed to allege any injury and that the product’s label was not misleading because no reasonable consumer could interpret it to mean the almonds were smoked in an actual smokehouse.

Key question: Did the plaintiff get the Smokehouse Almonds she expected?

The court first found that the plaintiff’s allegation of an economic injury — that she didn’t get what she paid for (almonds smoked in an actual smokehouse) — was sufficient to support standing, but found she lacked standing to pursue injunctive relief because she was aware of the alleged deception and therefore unlikely to suffer future harm.

Next, the court observed a split in authority from other federal district courts on the issue of whether the term “smokehouse” was misleading, but sided with the courts finding that a plaintiff’s interpretation of that word was not unreasonable or fanciful. The court explained that the term “smokehouse” is not a term like “vanilla” or “strawberry” that is frequently used to describe a flavor; rather, it describes a “physical structure” used to flavor the almonds.

This distinction was dispositive and brought settlement to the issue: the court found that a reasonable consumer could be misled by the product’s label and allowed the plaintiff’s statutory consumer protection claim and unjust enrichment claim to survive.

The court rejected the defendant’s ingredients list argument, which sought refuge in the contents of back-label ingredients that disclose the source of the smoke flavor, because the Seventh Circuit rejects an ambiguity rule immunizing defendants from suit for ambiguous front labels based on its back-label ingredients. The court did, however, agree with the defendant that the plaintiff failed to sufficiently plead the balance of her claims sounding in fraud (finding the scienter allegations insufficient and conclusory) and breach of warranty (finding the plaintiff failed to provide pre-suit notice) and dismissed them as a result.

This report is from an Alston & Bird debriefing for the case of Clark v. Blue Diamond Growers No. 1:22-cv-01591 (N.D. Ill. July 5, 2023). It was selected by Packaging Digest with permision from Alston & Bird’s just-published 10-page Food & Beverage Digest September 2023 online issue that features briefs on New Lawsuits Filed, Motions to Dismiss, Class Certification, Appeals, and Voluntary Dismissals.