Feeling Salty: New Evidence Emerges in Grillo’s Suit Against Patriot Pickle

Boston-based pickle brand Grillo’s yesterday filed an amended complaint as the latest salvo in its fight against former co-packer Patriot Pickle, introducing new evidence regarding sodium levels in the competitor’s products and potential FDA violations.

According to the complaint filed on Tuesday – part of a requested injunction against Patriot Pickle alleging theft of Grillo’s proprietary recipe to formulate the Wahlburgers At-Home packaged pickle line, filed in January – independent lab testing shows that the sodium levels listed for both Wahlburgers and Whole Foods 365 pickles, both of which are produced by Patriot, are significantly higher than the 180mg per serving listed on their respective nutrition panel “in direct violation of the FDA labeling regulations.”

Grillo’s products were similarly mislabeled while they were produced at Patriot; the company has since revised its own labels and sodium levels and informed Patriot of the correction, but the manufacturer continues to use the erroneous nutritional information with the aforementioned brands, which use a virtually identical nutrition facts panel as that of Grillo’s pickles while they were being produced by the co-packer according to the complaint.

The 180mg per serving sodium level listed on all three brands is “strong evidence that Patriot misappropriated Grillo’s trade secret recipes and processes,” the complainant claims.

The pickles allegedly contain “considerably” higher levels of sodium – well above the FDA limit of 120% of the amounts declared on the labels, the complaint alleges. In March, the FDA issued its final guidance with voluntary targets for reducing sodium in commercially processed, packaged and prepared foods over the next two-and-a-half years.

Additionally, chromatograms from independent lab testing show that the organic acid profiles of “Wahlburgers Fresh Dill Spears” and “Whole Foods 365 Dill Pickle Spicy Spears” are nearly identical to the organic acid profiles of Grillo’s corresponding products, according to the complainant.

When Grillo’s and Patriot entered their co-packing relationship in 2012, both parties signed a nondisclosure agreement regarding Grillo’s recipes and packaging processes. In 2015, the two companies signed a second nondisclosure agreement when Grillo’s stored and maintained an ozone cleaning machine at Patriot’s New Jersey facility.

Patriot remained one of Grillo’s partners until the summer of 2021 when the relationship ended, soon after the pickle company’s acquisition by King’s Hawaiian.

Grillo’s is requesting that Patriot remove any pickle products manufactured using its confidential and proprietary information from the market, return all materials containing its recipes and correct its pickle labels with regard to the amount of sodium listed.

“Because these copycat products have enormous, built-in name recognition and are sold throughout the company, often at substantially discounted prices, Patriot’s actions threaten to drive Grillo’s out of business,” the complaint reads.

The amended complaint comes after Patriot Pickle in August admitted in court filings that it misled consumers and retailers by labeling and marketing the Wahlburgers At-Home packaged pickle line as “fresh,” “all natural” and “containing no preservatives” when the pickles contained the artificial preservative sodium benzoate.

In the motion, Patriot Pickle said it has “taken voluntary corrective action to ensure future shipments of Wahlburgers pickles will be sodium benzoate-free, thus giving Grillo’s the relief it seeks.” The company also alleged that any Wahlburgers shipped prior to the admission are now past their best-by date and therefore are “unlikely to be on store shelves.”

Following the admission, The United States Court for the District of New Jersey decided to set aside Grillo’s preliminary injunction motion. However, with the amended complaint, Grillo’s will continue to pursue its claims against Patriot Pickle, ARKK Food Company and Wahlburgers, LLC for damages under the Lanham Act and unfair competition law.

Grillo’s will also continue to pursue its other lawsuit against Patriot Pickle in the U.S District Court for the Southern District of Florida alleging theft of its proprietary recipe to produce a line of “nearly identical” products for Whole Foods Market, filed in July.