Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 1 of 15
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`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Telephone: (516) 303-0552
`Fax: (516) 234-7800
`spencer@spencersheehan.com
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`United States District Court
`Southern District of New York
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`Darlene Wallace, individually and on behalf
`of all others similarly situated,
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`Plaintiff,
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`1:20-cv-06831
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`- against -
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`Class Action Complaint
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`Wise Foods, Inc.,
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`Defendant
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`Plaintiff by attorneys alleges upon information and belief, except for allegations pertaining
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`to plaintiff, which are based on personal knowledge:
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`1. Wise Foods, Inc. (“defendant”) manufactures, distributes, markets, labels and sells
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`cheddar and sour cream potato chips purporting to be flavored without artificial flavor contributing
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`to the characterizing flavor under the Wise brand (“Products”).
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`2.
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`The Products are available to consumers from retail and online stores of third-parties
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`and are sold in sizes including bags of various sizes including 2.75, 4.75 and 8.75 OZ.
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`3.
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`The relevant front label representations include the brand, “Cheddar & Sour Cream,”
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`“Flavored,” and an orange-yellowish color pattern.
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 2 of 15
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`4.
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`Cheddar cheese flavor is complex mixture of taste sensations, known for its “sharp,
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`pungent flavor” yet also having a “buttery and milk taste.”1
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`5.
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`Scientists have concluded that the unique flavor of cheddar cheese is due to its fatty
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`acids, butyl alcohol, carbonyls, diacetyl and acetoin.2
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`1 Cheddar cheese, https://en.wikipedia.org/w/index.php?title=Cheddar_cheese&oldid=941301433 (last visited Mar.
`2, 2020); https://www.keystonefarmscheese.com/cheddar-cheese
`2 E.A. Foda, et al. "Role of fat in flavor of Cheddar cheese." Journal of Dairy Science 57.10 (1974): 1137-1142; T. K.
`Singh et al., "Flavor of Cheddar cheese: A chemical and sensory perspective." Comprehensive reviews in food science
`and food safety 2.4 (2003): 166-189 (describing principal flavor compounds produced from metabolism of citrate,
`which occurs when making cheddar cheese).
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`2
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 3 of 15
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`6. Diacetyl is “an important aroma compound in butter, margarine, sour cream, yogurt,
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`and a number of cheeses, including Cheddar.”3
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`7. Diacetyl and other butter compounds are “an essential part of the flavor complex of
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`Cheddar cheese.”4
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`8. A scientist who developed a lexicon for description of cheddar cheese flavor included
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`aromatics associated with diacetyl and milkfat/lactones as being representative of cheddar flavor.5
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`9.
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`The Product’s label makes direct representations with respect to one of its
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`“distinguishable characterizing flavors,” cheddar cheese, through the statement “Cheddar & Sour
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`Cream.” See 21 C.F.R. § 101.22(i) (requiring declaration of flavor to truthfully indicate whether
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`the product’s flavor is from the characterizing food ingredient or from natural or artificial source
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`materials); see also 21 C.F.R. § 101.22(i)(3)(ii) (required labeling where product contains more
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`than one characterizing flavor).
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`10. The front label also contains the term “Flavored” which tells consumers that the
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`Product’s flavor does not only come from the characterizing food ingredients of cheddar cheese
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`and sour cream.
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`11. However, the front label fails to inform consumers that the Product contains artificial
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`flavor which “simulates, resembles or reinforces the characterizing flavor.” See 21 C.F.R. §
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`101.22(i)(2).
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`12. The ingredient list on the back shows the ingredients in order of predominance by
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`weight. 21 C.F.R. § 101.4(a)(1).
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`3 Stephanie Clark at al. "Diacetyl in foods: a review of safety and sensory characteristics." Comprehensive Reviews
`in Food Science and Food Safety 14.5 (2015): 634-643.
`4 Harold E. Calbert, and Walter V. Price. "A study of the diacetyl in cheese. I. Diacetyl content and flavor of Cheddar
`cheese." Journal of Dairy Science 32.6 (1949): 515-520.
`5 Tim Steury, The cheddar cheese lexicon, Washington State University Magazine.
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`3
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`13. The first two ingredients – potatoes and vegetable oil – are essential to making potato
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`chips, as the slices of potatoes are cooked in vegetable oil.
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`14. All ingredients from “Salt” to “Disodium Guanylate” are part of the seasoning used
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`to give the chips their flavor.
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`INGREDIENTS: POTATOES, VEGETABLE OIL (CONTAINS ONE
`OR MORE OF THE FOLLOWING: CORN, COTTONSEED,
`SUNFLOWER OR CANOLA OIL), SALT, WHEY, CHEESE FLAVOR,
`CHEDDAR CHEESE
`(CULTURED MILK, SALT, ENZYMES),
`MALTODEXTRIN, SALT, NONFAT DRY MILK, DISODIUM
`PHOSPHATE,
`MONOSODIUM
`GLUTAMATE
`(FLAVOR
`ENHANCER), CITRIC ACID, YELLOW 5, YELLOW 6, LACTIC ACID,
`SOUR CREAM FLAVOR [SOUR CREAM (CREAM, CULTURES,
`LACTIC ACID), NONFAT MILK, CITRIC ACID, DISODIUM
`PHOSPHATE,
`NATURAL
`FLAVOR],
`PARTIALLY
`HYDROGENATED COTTONSEED OIL, ONION POWDER,
`NATURAL FLAVOR, BUTTERMILK POWDER, CITRIC ACID,
`MODIFIED CORN STARCH, MALTODEXTRIN, SODIUM CITRATE,
`YELLOW 6 LAKE, SUGAR, YELLOW 5 LAKE, MILK POWDER,
`YEAST EXTRACT WITH NATURAL AND ARTIFICIAL FLAVOR,
`SODIUM CASEINATE, DISODIUM INOSINATE AND DISODIUM
`GUANYLATE (FLAVOR ENHANCERS).
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`4
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 5 of 15
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`15. Though the seasoning contains numerous sub-ingredients, it is accurately not
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`separately identified by the term “Seasoning” followed by sub-ingredients in parentheses.
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`16. The allowance for listing sub-ingredients in parentheses only applies where:
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`An ingredient which itself contains two or more ingredients and which has an
`established common or usual name, conforms to a standard established pursuant to
`the Meat Inspection or Poultry Products Inspection Acts by the U.S. Department of
`Agriculture, or conforms to a definition and standard of identity established
`pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act [,shall be
`designated in the statement of ingredients on the label of such food by either of the
`following alternatives:]
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`21 C.F.R. § 101.4(b)(2)
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`17. The options for labeling such ingredients permit:
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`declaring the established common or usual name of the ingredient followed by a
`parenthetical listing of all ingredients contained therein in descending order of
`predominance except that, if the ingredient is a food subject to a definition and
`standard of identity established in subchapter B of this chapter that has specific
`labeling provisions for optional ingredients, optional ingredients may be declared
`within the parenthetical listing in accordance with those provisions [or]
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`By incorporating into the statement of ingredients in descending order of
`predominance in the finished food, the common or usual name of every component
`of the ingredient without listing the ingredient itself.
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`21 C.F.R. § 101.4(b)(2)(i)-(ii).
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`18. Because “Seasoning” is not a food’s “established common or usual name,” nor
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`“conforms to a standard established pursuant to the Meat Inspection or Poultry Products Inspection
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`Acts by the U.S. Department of Agriculture, or [conforms to] a definition and standard of identity
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`established pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act, its components
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`are “split” into the overall list of ingredients.
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`19. However, some of the components of the seasoning are listed with sub-ingredients,
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`such as “Cheddar Cheese (Cultured Milk, Salt, Enzymes)” and “Sour Cream (Cream, Cultures,
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 6 of 15
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`Lactic Acid),” but these are foods subject to standards of identity.6
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`20. The ingredient list discloses artificial flavor as part of the “Yeast Extract with Natural
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`and Artificial Flavor,” on the fourth line from the bottom of the ingredient list.
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`21. Merely because a food has artificial flavor is not sufficient to require the front label
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`to disclose the presence of artificial flavor on the front label.
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`22. Rather, if the artificial flavor “simulates, resembles or reinforces the characterizing
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`flavor,” it must be identified in the flavor designation on the front label. See 21 C.F.R. §
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`101.22(i)(2); compare with 21 C.F.R. § 101.22(i)(1) (“no artificial flavor which simulates,
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`resembles or reinforces the characterizing flavor”).
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`23. Based on flavor composition analysis of the Product, the artificial flavor consists of
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`compounds associated with butter flavor.
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`24. The flavor of butter is known for enhancing and boosting the flavor of cheddar
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`cheese, making it misleading to not disclose the presence of artificial flavor on the Product’s front
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`label, i.e., “Artificially Flavored” or “Naturally and Artificially Flavored.” See 21 C.F.R. §
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`101.22(i)(2) (“If the food contains any artificial flavor which simulates, resembles or reinforces
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`the characterizing flavor…the name of the characterizing flavor shall be accompanied by the
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`word(s) ‘artificial’ or ‘artificially flavored’”); see also 21 C.F.R. § 101.22(i)(3)(ii) (“If the finished
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`product contains more than one flavor subject to the requirements of this paragraph, the statements
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`required by this paragraph need appear only once in each statement of characterizing flavors
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`present in such food, e.g., ‘artificially flavored vanilla and strawberry’.”)7
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`25. The front label does not disclose the presence of artificial flavor because Defendant
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`6 Technically “Sour Cream Flavor” is not subject to a standard of identity though “Sour Cream” is. See 21 C.F.R. §
`131.160
`7 This subsection appears to allow for “Naturally and Artificially Flavored” designation.
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`6
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 7 of 15
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`likely believes “that butter flavor complements processed and cheddar cheese profiles by rounding
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`out the named profile and adding a more fatty taste.”8
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`26. Flavor manufacturers and companies are familiar with flavor regulations and believe
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`that describing a flavor as “rounding out” another flavor exempts it from the front label flavor
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`designation based on a single comment in the Federal Register.
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`27. However, “rounding out” is often used a legitimate-sounding yet meaningless
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`rationale for excluding such flavor from the front label, where consumers are expecting to see it.
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`28. To “round out” is defined as “to bring to completion or fullness” which in the case
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`of a flavor, is equivalent to simulating and reinforcing the characterizing flavor.9
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`29. Further, the long-established connection of butter compounds as contributing to the
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`unique profile of cheddar cheese means that any artificial butter flavor in a cheddar cheese flavored
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`product is required to be disclosed to consumers.
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`30. Other brands of cheddar and sour cream ridged potato chips contain similar
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`seasoning with artificial butter flavor and identify their products as “Artificially Flavored” or
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`“Naturally and Artificially Flavored” on the front label.
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`31. These competitor products have the same flavor composition as the Product here, but
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`do not only list the artificial flavor on their ingredient lists.
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`32. Defendant knows consumers will pay more for the Product because the label does
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`not state “artificially flavored”
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`33. Defendant’s branding and packaging of the Product is designed to – and does –
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`deceive, mislead, and defraud consumers.
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`8 See Butter’s Got Cheese’s Back: Part One, October 17, 2014, Edlong.com (“Our dairy expertise has shown us that
`butter flavor complements processed and cheddar cheese profiles by rounding out the named profile and adding a
`more fatty taste.”).
`9 Merriam-Webster, round out.
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 8 of 15
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`34. Defendant has sold more of the Product and at higher prices per unit than it would
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`have in the absence of this misconduct, resulting in additional profits at the expense of consumers.
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`35. The value of the Product that plaintiff purchased and consumed was materially less
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`than its value as represented by defendant.
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`36. Had plaintiff and class members known the truth, they would not have bought the
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`Products or would have paid less for it.
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`37. The Product contains other representations which are misleading and deceptive.
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`38. As a result of the false and misleading labeling, the Product is sold at a premium
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`price, approximately no less than $2.79 per 8.75 OZ, excluding tax, compared to other similar
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`products represented in a non-misleading way.
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`Jurisdiction and Venue
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`39.
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`Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act
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`of 2005 or “CAFA”).
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`40. Under CAFA, district courts have “original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
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`diversity[.]" Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
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`41. Upon information and belief, the aggregate amount in controversy is more than
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`$5,000,000.00, exclusive of interests and costs.
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`42. This is a reasonable assumption because the Products are sold in thousands of stores
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`in this and other states and have been sold bearing the allegedly misleading claims for at least three
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`years.
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`43. Plaintiff is a citizen of New York.
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`44. Defendant is a Delaware corporation with a principal place of business in Berwick,
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 9 of 15
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`Columbia County, Pennsylvania and is a citizen of Pennsylvania.
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`45. This court has personal jurisdiction over defendant because it conducts and transacts
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`business, contracts to provide and/or supply and provides and/or supplies services and/or goods
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`within New York.
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`46. Venue is proper because plaintiff and many class members reside in this District and
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`defendant does business in this District and State.
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`47. A substantial part of events and omissions giving rise to the claims occurred in this
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`District.
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`48. Plaintiff is a citizen of Bronx, Bronx County, New York.
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`Parties
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`49. Defendant Wise Foods, Inc. is a Delaware corporation with a principal place of
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`business in Berwick, Pennsylvania, Columbia County.
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`50. Defendant is a well-known and almost century old producer of chips and snacks
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`under the “Wise” brand.
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`51. Defendant’s products are sold in “15 eastern seaboard states, as well as Vermont,
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`Ohio, West Virginia, Kentucky, Tennessee, and Washington, D.C.”10
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`52. During the relevant statutes of limitations, plaintiff purchased the Product within her
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`district and/or State for personal and household use or consumption in reliance on the
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`representations the Product did not contain artificial flavor which affected the Product’s primary
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`characterizing flavor(s).
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`53. Plaintiff purchased the Product on multiple occasions during the relevant period,
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`including in August 2020, at stores including Fine Fare Supermarket, 1136 Ogden Ave, Bronx,
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`10 Wikipedia contributors, “Wise Foods,” Wikipedia, The Free Encyclopedia (accessed August 25, 2020).
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 10 of 15
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`NY 10452.
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`54. Plaintiff bought the Product at or exceeding the above-referenced price because she
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`liked the product for its intended use or consumption.
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`55. Plaintiff was deceived by and relied upon the Product's deceptive labeling.
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`56. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions.
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`57. The Product was worth less than what Plaintiff paid for it and she would not have
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`paid as much absent Defendant's false and misleading statements and omissions.
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`58. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance that Product's labels are consistent with the Product’s ingredients – which may
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`involve changes to the front label flavor designation or the composition of the Products.
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`Class Allegations
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`59. The class will consist of all purchasers of the Product who reside in New York during
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`the applicable statutes of limitations.
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`60. Plaintiff will seek class-wide injunctive relief based on Rule 23(b) in addition to
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`monetary relief class.
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`61. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`62. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`63. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`64. No individual inquiry is necessary since the focus is only on defendant’s practices
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 11 of 15
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`and the class is definable and ascertainable.
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`65.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`66. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to adequately and fairly protect class members’ interests.
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`67. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York GBL §§ 349 & 350
`(Consumer Protection from Deceptive Acts)
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`68. Plaintiff incorporates by reference all preceding paragraphs.
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`69. Plaintiff and class members desired to purchase and consume products which were
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`as described and marketed by defendant and expected by reasonable consumers, given the product
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`type.
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`70. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`71. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Products.
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`72. Defendant’s conduct was misleading, deceptive, unlawful, fraudulent, and unfair
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`because it gives the false impression to consumers the Product does not contain artificial flavor
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`which resembles, simulates or reinforces the characterizing flavor of cheddar cheese.
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`73. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`74. Plaintiff incorporates by reference all preceding paragraphs.
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`75. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Products.
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`76. Defendant’s conduct was misleading, deceptive, unlawful, fraudulent, and unfair
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`because it gives the false impression to consumers the Product does not contain artificial flavor
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`which resembles, simulates or reinforces the characterizing flavor of cheddar cheese.
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`77.
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` Defendant had a duty to disclose and/or provide non-deceptive marketing of the
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`Products and knew or should have known same were false or misleading.
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`78. This duty is based on defendant’s position as an entity which has held itself out as
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`having special knowledge and experience in the production, service and/or sale of the product or
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`service type.
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`79. The representations took advantage of consumers’ (1) cognitive shortcuts made at
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`the point-of-sale and (2) trust placed in defendant, a well-known and respected brand in this sector.
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`80. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Products.
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`81. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`82. Plaintiff incorporates by reference all preceding paragraphs.
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`83. The Products were manufactured, labeled and sold by defendant and warranted to
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`plaintiff and class members that they possessed substantive, functional, nutritional, qualitative,
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`compositional, organoleptic, sensory, physical and other attributes which they did not.
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`84. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Products.
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`85. This duty is based, in part, on defendant’s position as one of the most recognized
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`companies in the nation in this sector.
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`86. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`87. Defendant received notice and should have been aware of these misrepresentations
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`due to numerous complaints by consumers to its main office over the past several years.
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`88. The Products did not conform to their affirmations of fact and promises due to
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`defendant’s actions and were not merchantable.
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`89. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`90. Plaintiff incorporates by references all preceding paragraphs.
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`91. Defendant’s conduct was misleading, deceptive, unlawful, fraudulent, and unfair
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`because it gives the false impression to consumers the Product does not contain artificial flavor
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`which resembles, simulates or reinforces the characterizing flavor of cheddar cheese.
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`92. Defendant’s fraudulent intent is evinced by its failure to accurately identify the
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`Products on the front label when it knew this was not true.
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`93. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`94. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`95. Defendant obtained benefits and monies because the Products were not as
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`represented and expected, to the detriment and impoverishment of plaintiff and class members,
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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 14 of 15
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`who seek restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying Plaintiff as representative and undersigned
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`as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, restitution and disgorgement for members of the State Subclasses pursuant
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`to the applicable laws of their States;
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`4. Awarding monetary damages and interest, including treble and punitive damages, pursuant
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`to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: August 24, 2020
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`14
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 303-0552
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
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`

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`Case 1:20-cv-06831 Document 1 Filed 08/24/20 Page 15 of 15
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`1:20-cv-06831
`United States District Court
`Southern District of New York
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`Darlene Wallace, individually and on behalf of all others similarly situated,
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` - against -
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`Wise Foods, Inc.,
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`Plaintiff,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 303-0552
`Fax: (516) 234-7800
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: August 24, 2020
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` /s/ Spencer Sheehan
` Spencer Sheehan
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