In a lawsuit* filed in New Jersey under the Lanham Act on Tuesday vs brand owner Wahlburgers I, LLC, Patriot Pickle Inc (which manufactures Wahlburgers pickles) and ARKK Food Company (which distributes them), Grillo’s accuses its rival of misleading consumers and retailers.
Wahlburgers pickles do not list any preservatives on product labels, notes the complaint, which claims that “recent lab tests” show the “amount of preservative found in Wahlburgers pickles far exceeds a trace amount, indicating it was added to these products despite what is claimed on their labels.”
According to the complaint, “Certificates of analysis from Biogen’s testing indicate Wahlburgers Hot Dill Chips pickles contain sodium benzoate in a concentration of 641ppm; Wahlburgers Dill Spears pickles contain sodium benzoate in a concentration of between 424 and 436ppm; and Wahlburgers Dill Chips pickles contain sodium benzoate in a concentration of 600ppm.”
[Editor's note: Sodium benzoate is generally recognized as safe by the FDA as an antimicrobial agent, flavoring agent, or adjuvant at a maximum use level of 0.1 percent in food.]
False advertising is ‘diverting customers and grocery buyers away from Grillo's and to Wahlburgers’
Grillo’s, which was founded in 2008 by Travis Grillo and built its reputation around a fresh, clean label positioning, argues that Wahlburgers' alleged false and misleading labeling “combined with similar packaging and near identical taste to Grillo's” has harmed Grillo's by “diverting customers and grocery buyers away from Grillo's and to Wahlburgers.
“Wahlburgers pickles are exclusively sold in the refrigerated section of grocery stores, often alongside other brands such as Grillo’s that are fresh, all natural, and do not contain preservatives,” says the lawsuit, which notes that searches on online shopping sites such as Instacart for ‘pickles, no preservatives’ bring up both Wahlburgers pickles and Grillo’s pickles “as the first results.”
The complaint adds: “Defendants have created pickles that copy Grillo’s as closely as possible, thus giving the false and misleading impression that Wahlburgers pickles, like Grillo’s, are free from artificial preservatives.”
Adam Kaufman, who took the helm as president at Grillo’s Pickles in early 2021 following its sale to King's Hawaiian and the departure of founder Travis Grillo, said: "In positioning its products as 'fresh' and containing 'no preservatives,' our competitor is effectively duping consumers and retailers, especially those who are actively seeking all-natural food products with clean labels.”
Attorney: Grillo’s may lack standing to pursue the case
So what do legal experts make of the case?
One legal source who spoke to FoodNavigator-USA on condition of anonymity queried whether Grillo’s had legal standing to bring the suit, adding: “They may lack standing due to lack of jurisdiction, or failing to state a claim of a concrete loss or damages.
“Their complaint speaks of losses they claim to have suffered from the defendants claims about their products, but is there really a connection based on the alleged false representations, or just envy of their competitor’s sales taking away profits in what is merely good competition?”
'Courts have been particularly skeptical of these sorts of claims'
David Kwasniewski, a partner at law firm BraunHagey & Borden, also predicted Grillo's might face an uphill battle, and observed that "Claims involving the use of supposedly artificial preservatives or flavors have recently drawn considerable skepticism from the courts, who doubt whether consumers really care, or suffer any actual injury, from how these ingredients are characterized on a label.
"The Ninth Circuit’s recent decision in Engurasoff v. Coca-Cola Refreshments USA, Inc., 2021 WL 3878654 (9th Cir. Aug. 31, 2021) swatted away a similar claim that Coke was mislabeled as having no preservatives despite including phosphoric acid. The Court held that plaintiffs weren’t injured because an abstract interest in compliance with labeling requirements could not establish standing, and plaintiffs had been unable to show anyone was actually misled.
"Although this case is brought by a competitor, I suspect the plaintiff will run into similar problems in showing any consumers were actually misled, especially in the Third Circuit where courts have been particularly skeptical of these sorts of claims."
FoodNavigator-USA has contacted the named defendants and will update this article should they supply us with a comment.
*The case is Grillo’s Pickles vs Patriot Pickle Inc., ARKK Food Company, and Wahlburgers I, LLC case # 2:23-cv-00011- filed in New Jersey on January 3, 2023.
Travis Grillo - who began selling pickles using his grandfather’s 100-year-old recipe out of a cart in Boston in 2008 - was surprised to see that some leading brands in the category still used preservatives such as sodium benzoate, artificial colors such as yellow 5, calcium chloride for flavor, and polysorbate 80 to help disperse fat-soluble colors and flavors when he started researching the retail category.
Grillo’s Pickles, by contrast, contain only cucumbers, brine (water, distilled white vinegar, salt), garlic, fresh dill, and grape leaves, he told FoodNavigator-USA in a 2019 interview.
“We’re taking the consumer that used to buy shelf stable pickles and they are now buying fresh. The cucumber inside that [shelf-stable] jar is probably four years old, I feel like they have preserved that cucumber to the point that it’s probably no longer a vegetable.”
Grillo stepped down in early 2021 after selling the firm to bakery business King’s Hawaiian.
Today, Grillo’s Pickles can be found in the refrigerated section of grocery stores nationwide. They are also available via delivery through Whole Foods, Instacart, Peapod, Target or Amazon Fresh.