Don't Mess with Texas: North Carolina Company Sued for Allegedly Misleading "Texas Pete" Hot Sauce
Texas Pete Lawsuit
Phillip White, a California resident, has brought a class action suit in the U.S. District Court for the Central District of California against T. W. Garner Food Co., based in North Carolina and manufacturer of “Texas Pete” hot sauce. T. W. Garner Foods acknowledged the suit in a statement: “We are aware of the current lawsuit that has been filed against our company regarding the Texas Pete® brand name. We are currently investigating these assertions with our legal counsel to find the clearest and most effective way to respond.”
In the Original Complaint, White asserts unfair competition, false advertising, violation of a California consumer statute, breach of warranty, and unjust enrichment. The dispute stems from White’s claim that T. W. Garner engaged in deception by misleadingly naming, labeling, and adorning the hot sauce with Texas references.
As explained in the lawsuit:
2. Synopsis. This class action lawsuit arises from Defendant’s failure to act in accordance with a fundamental precept of truth in advertising and fair play in the marketplace: the geographic origin of a product matters to consumers, and a company is therefore prohibited from misrepresenting it.
3. By representing that its Texas Pete® brand hot sauce products (“Products”) are Texas products, when they are not, Defendant has cheated its way to a market-leading position in the $3 billion-dollar hot-sauce industry at the expense of law-abiding competitors and consumers nationwide who desire authentic Texas hot sauce and reasonably, but incorrectly, believe that is what they are getting when they purchase Texas Pete.
4. Although Defendant brands the Products “Texas Pete,” there is surprisingly nothing Texas about them: unknown to consumers, the Products are standard Louisiana-style hot sauces, made with ingredients sourced outside the state of Texas, at a factory in North Carolina.
5. In furtherance of its deceptive labeling scheme, Defendant adorns the packaging and labeling with distinctly Texan imagery: the famed white ‘lone’ star from the Texan flag together with a ‘lassoing’ cowboy.
6. Defendant designed the misleading name and imagery to comprise the entire front label, repeated the deception on the prominent product seal, and then etched the Texan imagery into the glass on the front of the bottle.
TW Garner Food Co’s answer to the lawsuit is not due until November 2022, so we will have to wait to see how it intends to defend itself against these claims.
Label Disclaimer Sufficient to Defeat Claims of Deceptive Advertising?
According to court documents, "In making his purchase decision, White relied upon the language and images displayed on the front label of the Product, and at the time of purchase understood the Product to be a Texas product...Had White known the Product was not made in Texas, he would not have purchased the Product, or would have paid significantly less for it."
The website for Texas Pete contains a self-described “History of Texas Pete",” which traces its origins back to the Great Depression in 1929. The concept was developed by Harold Garner and his wife Jane, who were trying to make ends meeting for the family of 7. While originally developed for the family’s BBQ restaurant, the restaurant later went out of business. The sauce has since thrived.
According to the website, the hot sauce is not directly tied to Texas, but appears to be inspired by the Lone Start State. The name “Texas Pete” is a combination of the State’s name and “Pete,” a nickname for Garner’s son Harold.
As shown in the image below, the “Texas Pete” ingredients are listed on the packaging as well as the location of North Carolina for TW Garner Food Co. Assuming the label is accurate, it makes no reference to ingredients coming from Texas only and indicates a geographic origin of North Carolina. But it is adorned with Texas-themed imagery and name.
Sales for Texas Pete Spike After Lawsuit
Litigation Backfire? Massive Demand Spike for “Texas Pete” Following Lawsuit Filing
While most likely not an intended consequence, the lawsuit may have spurred a significant increase in sales for the Texas Pete product. The North Carolina news station WGHP-TV reports demand for Texas Pete hot sauce had shot up by 71 percent after the filing compared to the overall 2022 average.
“Texas Pete” not the only target, Plaintiff White also Sued Kroger, Whole Foods
T.W. Garner Food Co. isn’t the only target of White. In 2021, he filed suit against Kroger for claims that a “Reef Friendly” sunscreen was not in fact friendly to reefs. He also sued Whole Foods over its macaroni and cheese boxes claimed to be only half full.
How Should Texans React to “Texas Pete” Hot Sauce Made in North Carolina?
Setting aside the long-time dispute over “Carolina BBQ” vs. “Texas BBQ,” how should Texans react to a sauce bearing the Lone Star State’s name, but not made in Texas? Feel free to leave a comment below to weigh in on this controversy. Author’s Note — While I enjoy Texas BBQ, I have not given up Carolina-style pulled pork and BBQ sauce. This controversy reminds me of the old Pace Picante ads in the 1990s making fun of competitor products “made in New York City” instead of San Antonio, Texas.
You may also be interested in other Texas-themed colorful litigation:
For more information about false advertising, see our IP Litigation, Trademarks, and Industry Focused Legal Solutions pages.
About the Author
With 25 years of intellectual property (IP) litigation experience, Darin M. Klemchuk advises clients on a wide range of IP issues and strategy. You can learn more about Darin’s practice and view his curriculum vitae at his bio page. If you want to send Darin a message, then visit our contact page.
This post has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2022 Klemchuk LLP