Source - Food & Beverage Litigation and Regulatory Update | Issue 790

Grillo's Sues Wahlburgers for Preservative Claims

Pickle maker Grillo's Pickles, Inc. has filed suit against the maker of Wahlburgers pickles, alleging the company makes misleading claims about its pickles' freshness and all natural and preservative-free status. Grillo's Pickles, Inc. v. Patriot Pickle Inc., No. 23-00011 (D.N.J., filed January 3, 2023).

Grillo's said in its complaint that Wahlburgers pickles are sold nationally and marketed as “fresh,” “all natural,” and containing “no preservatives,” while the pickles “contain considerable amounts of an artificial preservative designed to lengthen the pickles’ shelf life.”

Grillo's asserts that Wahlburgers pickles are formulated to taste nearly identical to their pickles, and that Wahlburgers' pickles’ “false and misleading statements are the keys which have allowed Wahlburgers pickles to access and compete with Grillo's in the fresh, artificial-preservative-free pickle market.”

“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 plaintiff said in the complaint. “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.”

Grillo's also noted similarities in product containers between the two companies, furthering the impression that Wahlburgers pickles are interchangeable with their own. Grillo's is alleging false advertising under the Lanham Act and unfair competition. The company is seeking declarative and injunctive relief, defendants' profits, treble damages, reasonable attorneys' fees and punitive damages.

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