Blue Diamond Growers sells "Smokehouse" almonds. The almonds aren't made in a smokehouse (which involves soaking the almonds in brine, then roasting them in oil, and then inserting them in a smoker for several hours). Instead, the almonds are just seasoned with liquid smoke flavoring. When consumers buy "Smokehouse" almonds, are they expecting to buy almonds that have actually been smoked? That was the issue in a recent case in federal court in Wisconsin. (And it's been an issue in other cases we've blogged about as well, including in another Blue Diamond case and in a case involving eatz "smoked almonds.")
A consumer -- who was purportedly surprised and disappointed to find out that his "Smokehouse" almonds weren't actually smoked -- sued, alleging a variety of claims under the laws of Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and Arizona. Blue Diamond moved to dismiss on various grounds, and the court dismissed the complaint, saying "Ironically, this case is all smoke and no fire."
What I want to focus on here is the court's discussion of whether it thought that a "reasonable consumer" could be deceived by Blue Diamond's packaging.
First, the court focused on how consumers were likely to be exposed to the packaging. The court explained that almonds come in many different flavors, including honey roasted, habanero BBQ, and sweet Thai chili, and that they "are often displayed on a shelf along side one another, where a customer can peruse the flavor options before making a selection." In that context, the court felt that, "No reasonable consumer would view 'Smokehouse,' listed as one flavor among many, as describing the method of production, versus the flavor."
Second, the court looked at whether anything else on the packaging communicated that the almonds were actually smoked in a smokehouse. The court rejected out of hand the argument that the red color on the packaging was evocative of fire, and therefore communicated that the nuts were smoked. The court said that it thought that argument was "nonsensical," explaining that "the leap from a color to a specific building, namely a niche building like a smokehouse, would not occur to a reasonable consumer." The court also contrasted the Blue Diamond packaging with the packaging for another company's almonds that were actually smoked; the other packaging actually had a picture of a smokehouse with billowing smoke on it.
With nothing else to point to other than the word "Smokehouse," the court determined that reasonable consumers would not be misled. The court held, "the term 'Smokehouse' is clearly used as a flavor indicator, and evokes a smokey flavor but stops short of conveying that an actual smoking process was involved."
Zapadinsky v. Blue Diamond Growers, No. 23-CV-231-JPS (E.D. Wis. August 7, 2023).
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