Pickle Lawsuit Alleges Wahlburgers Is Duping Consumers

Wahlburgers I LLC (Wahlburgers ) is facing a New Jersey false advertising lawsuit in Federal Court over claims that its pickles aren’t as fresh as they claim. Grillo’s Pickles, Inc. (Grillo) alleges that Wahlburgers’ pickles are falsely marketed as having all-natural ingredients and no preservatives. 

Grillo also contends that the similarities between the two pickle products not only confuses consumers, but is also unfairly cutting into its market share. The suit, Grillo’s Pickles, Inc. v. Patriot Pickle Inc. et al., also names Wahlburgers’ distributors Patriot Pickle Inc. and ARKK Food Co. as co-defendants.

False Advertising Under the Lanham Act

False or misleading advertising claims can be brought under a number of state and federal laws. While the Lanham Act is most often forms the basis for trademark infringement claims, it also protects businesses against unfair competition resulting from misleading advertising or labeling. Pursuant to 41 U.S.C. § 1125(a)(1):

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Notably, only those suffering a competitive injury have standing to sue for false and misleading advertising under the Lanham Act. Thus, consumers generally cannot pursue false advertising claims under the Lanham Act, but must rely on other statutes.

With regard to food advertising, the Federal Food, Drug, and Cosmetic Act (FDCA) prohibits “labeling [that] is false or misleading in any particular.” Under the FDCA and its implementing regulations, a food is misbranded if it contains “chemical preservative, unless it bears labeling stating that fact. Additionally, 21 C.F.R. § 101.95(a) provides that the term “fresh” can only be used when food “has not been frozen or subjected to any form of thermal processing or any other form of preservation.”

Allegations Against Wahlburgers

According to Grillo’s lawsuit, Wahlburgers makes several false and misleading statements in marketing its pickle products. As set forth in the complaint:

Wahlburgers pickles are sold in grocery stores nationwide and marketed as, among other things, “fresh,” “all natural,” and containing “no preservatives.” Unfortunately, none of these claims are true. Far from being “fresh,” “all natural,” and preservative free, Wahlburgers pickles contain considerable amounts of an artificial chemical preservative designed to lengthen the pickles’ shelf life.

In its complaint, Grillo specifically contends that Wahlburgers pickle labels are false and misleading because they omit the name of the artificial chemical preservative used in Wahlburgers pickles, as well as the fact that it functions an artificial chemical preservative, both of which are regulated under the FDCA. The use of preservatives also makes it misleading to label the pickles as “all natural,” according to the suit. The complaint further alleges that Wahlburgers pickle labels stating that Wahlburgers pickles are “fresh” is also false and misleading because the term “fresh” may only be used when products do not contain artificial chemical preservatives.

Grillo further maintains that the defendants’ false and misleading statements about Wahlburgers pickles have caused Grillo’s business to suffer. “Absent these false and misleading statements, Wahlburgers pickles would not have been in the same fresh, artificial-preservative-free category as Grillo’s pickles and would not have been purchased by consumers to whom these attributes are important,” the compliant states. “Further, absent these false and misleading statements, Wahlburgers pickles would not have been viewed by grocery stores and consumers as a substitute product for Grillo’s and would not have been purchased by customers and grocery store buyers to the detriment of Grillo’s sales, allotted shelf space, and market share.”

Finally, Grillo alleges that its former distributor (and Wahlburgers’ current distributer) Patriot Pickle Inc. (Patriot) had full knowledge of Grillo’s recipes, which the defendants used to formulate Wahlburgers pickle recipes to be nearly identical to Grillo’s save for the addition of an artificial chemical preservative. According to Grillo, the similarities are intended to make customers believe the products are substantially similar, despite the fact that Wahlburgers uses preservatives. “The Wahlburgers pickles taste extremely similar to Grillo’s, use the same containers, and use the same naming conventions,” the complaint states. “The Wahlburgers pickles also have the same nutritional fact panels as Grillo’s and are sold in many of the same stores.”

The New Jersey false advertising lawsuit seeks damages and an order requiring Wahlburgers to properly label its products going forward.

Key Takeaway

Food and beverage manufacturers should be aware that lawsuits involving “all natural” products are on the rise. As highlighted by the suit against Wahlburgers, both consumers and competitors may bring claims for misleading advertising claims, which reduces the risk of liability. To avoid a costly lawsuit, it is imperative to ensure that all labels accurately reflect the content of the product.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Patrick J. McNamara, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.