McCormick Attempts to Sidestep Pepper False Ad Lawsuit

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Earlier this week, McCormick argued in federal court in the District of Columbia to dismiss a lawsuit filed by competitor Watkins Inc. alleging the popular spice company underfills its pepper containers.

In its arguments supporting its motion to dismiss the lawsuit, McCormick maintained that selling pepper in a certain sized container is not considered advertising under the provisions of the Lanham Act.

McCormick continued to argue that Watkins’ allegations that the pepper company’s practices of allegedly underfilling pepper containers caused Watkins to be damaged from lost sales was unfounded.

Allegations of McCormick’s slack fill pepper container practices that surround false advertising claims are also the target of multiple consumer class action lawsuits that have been consolidated before U.S. District Judge Ellen S. Huvelle Washington D.C.

The first consumer lawsuit was filed in June 2015 in New York federal court and alleged that the company tried to cut costs by having three sizes of pepper tins then changed the weight of the pepper in the tin to be 25% of its original weight. Additional consumer class action lawsuits were filed in California, Florida, Illinois, Missouri, Nevada and Washington DC.

In this week’s oral arguments, counsel representing McCormick said, “no federal court” has ever heard a lawsuit where a plaintiff cited false advertising and violations of the Lanham Act that were connected to the size of a product container and how much product the container actually held.

“With all due respect to [opposing counsel’s] creativity, I think if this were even a close call, somewhere along the way someone would have tested that proposition,” McCormick’s counsel told the judge.

In rebuttal, the counsel for Watkins reiterated that the size of a container for a particular product has an “implicit representation of the fact that it’s full.”

Watkins’ counsel continued by saying, “That is a form of advertising or promotion in connection with that container. People assume that it is going to contain a full complement of that commodity.” He continued, “That’s a form of advertising in any one’s fair reading, in our view.”

Both parties also argued about whether Watkins had adequately pled that the company’s claim that it was injured by losing profits was a “proximate cause” of McCormick’s alleged slack filling of the containers.

Watkins maintained that it would have been able to sell more pepper in stores like Walmart and Target had McCormick not gained an unfair advantage when it changed its filling practices. McCormick’s counsel called the amount of potential sales “speculative,” and said that it was a matter to be decided by the jury, not during the pleading stage.

In response, Judge Hueville asked Watkins to devise a supplemental brief detailing how the company had calculated the damage from the sales it had allegedly lost due to McCormick’s filling practices.

Initially, the lawsuit filed by Watkins was in Minnesota federal court, but due to the Judicial Panel on Multidistrict Litigation’s finding that the consumer lawsuits “share[d] factual questions about the propriety of McCormick’s pricing and packaging of its pepper products under various federal and state laws,” it was transferred and consolidated with the consumer lawsuits.

Watkins is represented by Geoffrey P. Jarpe and Charles G. Frohman of Maslon LLP.

The Watkins v. McCormick Pepper Lawsuit is part of the MDL In Re: McCormick& Co. Inc., Pepper Products Marketing and Sales Practices Litigation, Case No. 1:15-mc-01825, in the U.S. District Court for the District of Columbia.

UPDATE: On Oct. 25, 2016, a Washington D.C. federal judge denied McCormick & Co. Inc.’s motion to dismiss a putative false advertising class action lawsuit alleging the spice maker underfills its pepper tins.

UPDATE 2: February 2020, the McCormick black pepper class action settlement is now open. Click here to file a claim.