US rivals get into a pickle over ‘all natural’ snack offerings that sport ‘considerable amounts’ of a chemical preservative
According to the federal Lanham Act and common law unflair competition claim filed in the state of New Jersey, Massachusetts-headquartered Grillo’s alleges the burger chain is ‘duping’ consumers into believing their pickles are ‘fresh’ and ‘all natural’.
Recent lab tests to back up Grillo’s lawsuit show Wahlburger’s products contain ‘considerable amounts’ of benzoic acid.
Benzoic acid is often added to foods via sodium benzoate – an artificial preservative designed to lengthen the pickle’s shelf life and ‘general recognised as safe by the FDA as an antimicrobial agent at a maximum level of 0.1% in food.
According to the complaint, lab tests found sodium benzoate in concentrations of up to 641 ppm in Wahlburgers Hot Dill Chips, while the brand’s Dill Spears and Dill Chips contain concentrations of 424ppm and 600ppm, respectively.
Interestingly, the benzene-based carboxylic acid has been known since the 16th Century, first described by the legendary clairvoyant Nostradamus in 1556. Its most common natural source is gum benzoin, a resin found in the bark of certain trees, however today, most benzoic acid produced today is synthetic.
Grillo’s further contends the amount of benzoic acid found in Wahlburgers’ product ‘far exceed a trace amount’ and the ingredient is not detailed on its labels.
Wahlburgers
Wahlburgers is a casual dining restaurant and bar chain, owned by chef Paul Wahlberg and his brothers, actors Donnie and Mark. As of February 2022, the company operated 49 location in the US, two in Canada, one in Germany and another in Australia. The company has plans to expand its international footprint further, and also operates a bank of food trucks in the US.
Wahlburgers markets its packaged pickles sold in grocery stores as ‘all natural’, with ‘no preservatives’.
False and misleading labelling
According to Grillo’s present Adam Kaufman, the alleged false and misleading labelling – along with the almost identical packaging and taste – has diverted customers and grocery buyers away from Grillo’s. As a result, Grillo’s is asking the judge for preliminary and permanent injunctions as well as treble damages from Wahlburgers I, LLC, New Jersey-based Patriot Pickle Inc (manufacturer) and ARKK Food Company (distributor).
“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,” said Kaufman.
“Like our customers, we understand and value the importance of ingredient transparency.”
Neither Wahlburgers nor Patriot Pickle responded to the request for comment before the story went to print.
Grillo's
Founded on the back of a 100-year-old family recipe, Grillo's Pickles claims its snacks are made with ‘simple, real and garden-fresh ingredients’ preserved in a brine (water, distilled white vinegar and salt). Art school grad Travis Grillo started selling the kitchen-made pickles in a wooden cart on the streets of Boston in 2008. Today, the brand’s chips, wholes, spears and Pickle de Gallo can be found in the refrigerated section of US grocery stores nationwide.
Grillo’s was acquired by family-owned bakery business King’s Hawaiian in 2021.
Lawsuit:
Grillo’s Pickles vs Patriot Pickle Inc., AARK Food Company and Wahlburgers I, LLC; case number 2:23-cv-00011; filed in New Jersey on 3 January 2023.
