- A federal judge has denied class certification (Law360 subscription required) in a lawsuit alleging that Blue Diamond Growers deceived its customers by describing its almonds as “smokehouse,” despite the characterizing flavor being from synthetic flavoring. According to the judge, the lead plaintiff in the case had knowledge of the alleged defect but continued to purchase the product.
- The plaintiff filed the lawsuit in March 2022 claiming that the almond packaging tricks consumers into thinking that the almonds are produced in a wood-burning smokehouse, but in reality the almonds containing “natural hickory smoke flavor,” which the plaintiff defines as “smoke condensed into a liquid form.”
- According to the class denial order, a plaintiff must show proximate cause, or that they were “in some manner, deceived,” to prevail on a deceptive advertising claim. Further, a plaintiff cannot show proximate cause “where he knows the truth and as such, is not deceived.” A plaintiff that cannot show proximate cause cannot be an adequate class representative.
- The judge explained that the plaintiff’s testimony demonstrated that she had knowledge that the almonds contained smoke flavor because she viewed a Facebook ad from plaintiffs’ counsel that stated “many of these smoked almond snacks use added smoke flavor instead of nuts actually being smoked” and asked users to sign up if they had recently purchased such a product. However, the plaintiff continued to purchase the almonds every few months for more than a year after viewing the ad. Therefore, according to the judge, the plaintiff could not prove proximate cause because she knew the truth about the product and was, therefore, not deceived.
- Keller and Heckman will continue to monitor litigation related to food labeling.