Dietz & Watson Cheese Is Mislabeled as Being Smoked, Class Action Lawsuit Says

A New York man has filed a class action lawsuit alleging the smoked provolone variety of Dietz & Watson cheese is branded in a misleading way.

Lead plaintiff Jeff Jones says consumers rely on a product’s main label to tell them the “common or usual name” of a food.

However, Jones says the label on Dietz & Watson cheese fails in that regard. 

The product, which is labeled as “Smoked Provolone Cheese” should more accurately be called  “Natural Smoke Flavored Provolone Cheese.”

Jones argues the food’s name is required by law to accurately describe in direct terms “the basic nature of the food or its characterizing properties or ingredients.”

If a food, such as the Dietz & Watson cheese, makes a representation regarding its “primary recognizable flavor,” it is required along with the name of the food.

Regulations say the labeling of a food’s flavor must tell consumers whether a food derives its flavor “from the ‘real’ thing” — in this case, smoke — as well as whether the product contains any additional flavor or flavor from artificial sources.

These regulations established custom that led to consumers inferring certain information about a product’s flavor based on the label.

Jones says for nutritional, health and other reasons, consumers prefer to eat foods that get their flavor “from a characterizing food ingredient” or from a “natural production process.”

According to the class action lawsuit, smoking is a means of food preservation and preparation that is performed “over a fire of woodchips,” such as hickory, that give the food different flavors.

But Jones argues Dietz & Watson cheese is misrepresented as being smoked provolone because “smoke flavor” is listed among the product’s ingredients, meaning its flavor is not derived from actual smoking but from an added flavoring.

The U.S. Food and Drug Administration (FDA) has said that companies should alert consumers about foods that are not smoked but have the flavor added.

No reasonable consumer would know, based on the Dietz & Watson cheese’s label, that the smoked provolone was not, in fact, smoked.

The defendant’s branding of the Dietz & Watson cheese is, therefore, designed to mislead consumers, Jones argues.

The defendant allegedly sold more of the Dietz & Watson cheese and at higher prices, than it would have had it been honest about the product, Jones says, adding that had he and other consumers known the truth, they would not have bought the cheese or would have paid less.

“As a result of the false and misleading labeling, the Product is an sold at a premium price, approximately no less than $6.79 per 8 OZ compared to other similar products represented in a non-misleading way, and higher than the price of the Product if it were represented in a non-misleading way,” the class action lawsuit states.

Jones formally accuses Dietz & Watson of violating New York General Business Law and of unjust enrichment, fraud, negligent misrepresentation and breaches of express warranty, implied warranty of merchantability and the Magnuson Moss Warranty Act.

Through his class action lawsuit, Jones is asking for injunctive relief directing the defendant to correct its alleged illegal practices; for disgorgement and restitution for Class Members; monetary and statutory damages; costs and expenses, including attorneys’ fees; and any other relief the Court deems appropriate.

He also demands a jury trial.

Have you purchased Dietz & Watson cheese? What did you think of the flavor? Let us know in the comment section below.

The plaintiff is represented by Spencer Sheehan of Sheehan and Associates PC.

The Dietz & Watson Cheese Class Action Lawsuit is Jeff Jones, et al. v. Dietz & Watson Inc., Case No. 1:20-cv-06018, in the U.S. District Court for the Eastern District of New York.

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