Area pickle company sours on the Wahlbergs; says what they're doing with pickles just ain't kosher, so it sues
Grillo's Pickles, started by a man who sold pickles from a cart outside the Park Street T stop, yesterday sued Wahlburgers over the competing pickles the burger chain now sells, alleging they have lying labels because they are not preservative free and because they might be based on Grillo's 100-year-old secret family pickle recipe.
In its jarring complaint, filed in US District Court in New Jersey, Grillo's, now owned by some California food company, but based in Westwood, says the idea of preservative-laced pickles labeled as "fresh" does more than just offend its sensibilities as a purveyor of preservative-free fresh pickles. Grillo's charges the deceptive labeling affects its bread-and-butter business because the Wahlburger pickle line competes directly with it and the unlabled preservatives mean their gherkins deceive customers and retailers.
Along with its formal complaint, Grillo's supplied results from a test lab showing a jar of Wahlburgers pickles was laced with benzoic acid and sodium benzoate, preservatives not disclosed on the label. Any way you slice it, that's just wrong, Grillo's charges:
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. ...
Defendants’ 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. 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.
The suit continues:
Upon information and belief, Defendants' clandestine addition of an artificial chemical preservative to its pickles and the effects thereof afford Wahlburgers pickles a longer shelf life than fresh pickles and allow Defendants to hold inventory longer than they otherwise would be able to hold fresh pickles. On information and belief, this artificially enhanced shelf life and ability to hold inventory longer affords Defendants a competitive advantage that is not available to companies that produce truly fresh pickles, such as Grillo's.
The suit also names the Michigan company that handles distribution for Wahlburgers retail products and a New Jersey pickle packer. The New Jersey angle is a big dill because Grillo's formerly had a contract with the company, which the suit alleges may be how Wahlburgers came up with a recipe that appears to be identical to the one that Travis Grillo says had been handed down for 100 years in his family.
Defendants' conduct is all the more culpable given that (1) Patriot had full knowledge of Grillo's recipes and (2) Defendants used this knowledge to formulate Wahlburgers pickle recipes to be nearly identical to Grillo's save for the addition of an artificial chemical preservative. Thus, although Defendants knew Wahlburgers' pickle recipe differed from Grillo's almost solely by virtue of the addition of an artificial chemical preservative, Defendants nonetheless falsely labeled their product to deceive customers into believing that, like Grillo's, Wahlburgers pickles are, inter alia, free from artificial preservatives, fresh, and all natural.
Grillo's says it has seen online comments wondering if Walhburgers pickles are, in fact, just repackaged Grillo's Pickles, which the suit assures whichever judge it is assigned to they most definitely are not.
The complaint asks a judge for an injunction that would require Wahlburgers to stop calling its wares "fresh." The company is also seeking treble and punitive damages to be determined at trial.
Complete complaint (1.1M PDF).
Lab results (111k PDF).
Like the job UHub is doing? Consider a contribution. Thanks!
Grillo's isn't local
Grillo's was bought out by King's Hawaiian. Yes the bread company. They aren't local any more. Wahlburgers is though.
Still based in Westwood
But, yes, headline and story fixed.
I'm reading the charges in a Peter Faulk "Columbo" voice
Just one more thing...
Adam really had to concentrate and pucker his lips to come up with that one.
These puns are Adam's bread and butter
which was another pickle related pleaser that I appreciated in this article.
Bad news, Grillo Team
You should have hired a botanist and/or a chemist. Benzoic acid is made by plants (even cucumbers). The idea that you "discovered" sodium benzoate from lab tests in the liquid of a jar of pickles is also laughable. IF there's benzoic acid in the liquid (which is basically "benzoate" with a hydrogen that found it). And then you add salt (sodium and chlorine in equal amounts dissolved into it)...then you make sodium benzoate in the pickling liquid (the hydrogen can dissolve into the rest of the liquid and the sodium from the salt plus the benzoate means you "found" sodium benzoate without adding any solid sodium benzoate).
And while the amount of benzoic compounds they found in the lab results was probably higher than in cucumbers naturally (but what do I know about whether that's true or not...they have to prove it, not me). You'd also have to convince me that garlic and dill (both in the listed ingredients) don't ALSO make lots of benzoic compounds in their metabolism and all you're doing is showing that the benzoates from the garlic and dill and cucumbers aren't what you're finding....again, while also convincing me that benzoic acid isn't "natural" considering nearly all plants make it as a product of their metabolism.
And if Wahlburgers is adding it, then it should be on the ingredients list, but that seems like an FDA problem.
And if Grillos thinks it has some sort of family secret on putting cucumbers in vinegar, salt, garlic, and dill...then have I got bad news for them.
Now, the REAL lawsuit here should be the fact that the lab company that ran the test for Grillos is a place called "Biogen Laboratory Developments" in Oregon...and they haven't been sued to oblivion by Biogen in Cambridge.
Trademark is divided by locale and domain, among other things
The key question is "can these two trademarks be confused for each other". If one is making therapeutics and the other is doing analysis, they may not really have a case in court.
I guess it would depend on how technical the court was (or wanted to be) when it comes to "science" company versus "lab diagnostics isn't pharmaceuticals" company or whatever. It was odd enough that I had to look up online to see if Biogen (of Oregon) was somehow related to Biogen (of Cambridge) before I made the comment.
Anyways, you don't need a lawsuit for Biogen (of Cambridge's) lawyers to write a "Really Scary Letter"™ to get Biogen (of Oregon) to figure changing their name is the more cost-effective response.
I think the whole point of including the lab results is because they will produce experts who do know how much benzoic acid/sodium benzoate can be directly derived from plant sources, and that testimony and the lab results will support their claim.
Fwiw, the (by-far) highest naturally occurring source of benzoic acid I could find is cinnamon - about 335 parts per million, with other ‘rich’ sources having a small fraction of that. The amounts recorded in the lab results for the assorted Wahlpickles are all higher than that, with benzoate levels even higher - some almost twice as high. It’ll be interesting to hear Wahlburgers explanation for how they achieved levels of sodium benzoate that approach the allowable limit for food products sold here in the US.
Levels in the samples
I'm not sold on the two values they report being anything but duplicates of the same chemical.
They have a highly acidic solution (lots of acetic acid) that's buffered with salt (lots of sodium). And they're doing HPLC...likely in a high acid solution for the chromatography...so they could easily be driving benzoic acid creation in their own samples let alone whatever might have been added going back and forth between the two forms in the sample because of the salt buffer in the recipe.
Here's a good read from Derek Lowe (one of the preeminent medicinal chemists of our time) on the topic: https://www.science.org/content/blog-post/sodium-benzoate-nonsense
Without more info from the lab on their methodology, I think it's difficult to say what's going on in those samples...I'll give them the benefit of doubt that they're measuring benzoates but it's completely unclear how much is actually in the samples and why they'd see any discrimination between the sodium salt version or the acid version given all the other factors at play. It's more likely (to me) that they've measured the same amount of benzoate...twice.
Should be easy to validate that theory
Run other "fresh" pickles through the same assay and see what their benozate levels are. If they're *also* unexpectedly high, then you can assume there's something wrong with the method. But if Wahlberger's is an outlier, something's up.
Which makes it a bit suspicious that Grillos didn't run their own pickles to prove the point...
Speaking as a pickle purist
I'm shaking my giant kosher dill in anger.
For once I am not in a pickle
For once I am not in a pickle about the use of puns in a post and its replies.
Folks will just have to dill with it