NEWARK, N.J. (Legal Newsline) - Pickles containing sodium benzoate have passed their expiration date, which has done the same to a false advertising lawsuit over the preservative, says one of the makers of Wahlburgers dill spears and chips.
Patriot Pickle filed a motion to dismiss June 21 in New Jersey federal court in litigation brought by Grillo's Pickles, which claimed it was unfair for Patriot to claim Wahlburgers pickles were preservative-free.
Patriot works with Arkk Food Company and Wahlburgers to manufacture and pack "all-natural" pickles but found out they contained sodium benzoate in January when Grillo's sued the three.
But that mistake has been addressed and pickles made prior are now past their expiration dates and likely no longer on store shelves, Patriot argues in rejecting Grillo's claim for injunctive relief.
"Thus, even if Grillo's had implicitly requested a recall, that request would now be moot as well," Patriot's lawyers wrote.
Arkk is also facing a proposed class action in Chicago under the Illinois Consumer Fraud and Deceptive Business Practices Act. The suit cites the testing conducted by Grillo's, but Arkk argues the plaintiff can't show any of the pickles he purchased contained sodium benzoate.
Grillo's also makes false advertising claims in its case, arguing it unfairly lost sales, shelf space and market share to Wahlburgers. But the company can't establish standing, Patriot says.
"Grillo's must plead facts - not conclusions," the motion to dismiss says. "And if Grillo's did, in fact, suffer financial harm due to Wahlburgers' presence in the market, it could (and should) have pled facts to that effect.
"Tellingly, it did not. ...(E)vidence of Grillo's alleged injury - if any such evidence exists - would be entirely within Grillo's control, yet Grillo's has not alleged any direct, concrete harm."