McCormick Can’t Shake Slack-Fill Black Pepper Tins Class Action

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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.

In a motion hearing Tuesday, McCormick presented arguments to toss the class action lawsuit, telling the court that the eight named plaintiffs lack standing to represent the proposed Class.

But U.S. District Judge Ellen S. Huvelle put off McCormick’s motion to dismiss the case, stating that the spice company needs to wait for the class certification phase.

“You’re asking me to do certification before they’ve even discussed the state statutes,” Judge Huvelle stated.

The judge further suggested that McCormick was “putting the cart before the horse,” noting that the proper time to bring forth a lack of standing matter would be during the certification stage and not before.

McCormick’s counsel, David Bamberger of DLA Piper, told Judge Huvelle that because of the “differences among the statutes and the differences among the common law are material,” she has the authority to determine standing prior to certification, though not legally bound to.

Additionally, Bamberger argued that the proposed Class was “over broad” since it covers all customers who purchased McCormick pepper and does not distinguish those who may not have been deceived by the alleged underfilled tins.

“Anyone who is not injured as alleged in the complaint has no right to recover,” he told the court. “We should not have any liability to those people.”

Plaintiff Rhonda Dupler initially filed the false advertising class action lawsuit against McCormick in New York federal court in June, alleging that when she purchased McCormick Pure Ground Black Pepper, she believed it would be filled to capacity.

According to the complaint, in response to increasing black pepper prices, McCormick increased prices but reduced the amount of pepper in many of its standard containers.

Dupler claims that she later learned the product contained only approximately 1.5 ounces of ground black pepper, which McCormick allegedly failed to properly disclose the new weight on their container labels, in violation of the Food, Drug and Cosmetic Act.

Rhonda’s lawsuit was followed by several similar cases filed in California, Florida, Missouri, Illinois, Nevada, and Washington D.C.

McCormick successfully moved to have all the cases consolidated to federal court in the District of Columbia in 2015.

The popular spice company is also facing a lawsuit filed by competitor Watkins Inc. who claims they suffered damages from lost sales and that McCormick had an unfair advantage in the market when it opted to underfill its pepper containers.

McCormick filed a motion to dismiss this case in July on grounds that under the Lanham Act, selling pepper in certain sized containers in not considered advertising.

The consumers in the consolidated and potential tagalong actions are separately represented by Hagens Berman Sobol Shapiro LLP, Robbins Geller Rudman & Dowd LLP, Denlea & Carton LLP, the Law Offices of Howard W. Rubinstein PA, Levi & Korsinsky LLP, The Simon Law Firm PC, Kamberlaw LLP, Donovan Rose Nester PC, Armstrong Law Firm LLC, Durney Brennan Ltd., Nelson & Nelson PC and the Kazerouni Law Group APC, among others.

The McCormick Underfilled Pepper Containers Class Action Lawsuit is 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: February 2020, the McCormick black pepper class action settlement is now open. Click here to file a claim.