In an opinion yesterday, Judge Cronan refused to dismiss a case under New York’s consumer fraud statute alleging that the “Smokehouse” almonds (depicted below) were marketed in a misleading fashion because allegedly they are not actually prepared via smoking.

The defendant argued that “Smokehouse” refers to the flavoring only, but Judge Cronan concluded that, while a “close call,” the allegations were enough to survive the motion:

[T]he Court concludes that Plaintiff has plausibly pleaded that the Product is likely to mislead a reasonable consumer into believing that Defendant’s almonds were manufactured through an actual smoking process. Plaintiff therefore has sufficiently pleaded a material misrepresentation under N.Y. G.B.L. §§ 349 and 350.

To start, the front packaging of the Product is labeled, in large font, with the word “Smokehouse®.” The word “smokehouse” is a noun that describes a physical structure where food is prepared through the process of using actual smoke . . . [I]t is not also an adjective or otherwise a word commonly used to describe a flavor. And nothing else on the front of the packaging would alert consumers that the “Smokehouse®” label refers only to the almonds’ flavor, rather than the flavoring process, such as words like “smoky flavor.”

As such, the Product is labeled with a word whose sole meaning goes directly to the misrepresentation alleged by Plaintiff, i.e., the fire-infused process by which a food product is prepared, without any qualifying or clarifying language