Competitor v. Competitor: Deceptive Packaging Reaches New Level

Not too long ago, we reported on a suit against Unilever in which the Orange County (CA) District Attorney’s Office accused the company of fudging the packing of its AXE line of male grooming products. Now, a new product finds itself the target of a deceptive packaging lawsuit, and the plaintiff bringing the action may surprise you.  Rather than a disgruntled consumer or, as in the Unilever case, an entity acting on behalf of consumers, the plaintiff is the target defendant’s competitor.

According to a report from the Star Tribune, Watkins, Inc., a Minnesota-based manufacturer of a variety of baking products including pepper and vanilla extract, filed suit against McCormick & Co. alleging that the spice giant is deceiving consumers. Specifically, Watkins alleges that McCormick decreased the amount of black pepper in its tins by 25 percent without shrinking its containers or lowering its prices. According to the complaint, McCormick’s and Watkins’ black pepper tins appear similar in size while maintaining different quantities of product. As such, McCormick’s packaging has allegedly led to confusion in the marketplace.

Reducing the quantity of product contained in a package is a common practice of manufacturers looking for alternatives to raising prices.  Nonetheless, we here at Abnormal Use can see how such a practice might possibly be viewed as deceptive. That said, we question whether Watkins is the appropriate plaintiff to file such a grievance.  If a consumers buys six ounces of a product under the reasonable belief that her or she is actually purchasing eight ounces., isn’t it the consumer who has been damaged?  In fact, Watkins seems to acknowledge as much as its complaint is littered with references to the deceived “consumer.”

Obviously, Watkins’ real beef is its belief that McCormick’s alleged deceptive packaging has damaged its share of the marketplace. Even if true, such damage is trivial.  McCormick has a 43 percent share of the U.S. black pepper market. Its next biggest competitor, Tone’s, has a 9 percent share.  Watkins’ current share is marginal at best.

With that said, this picture embedded in the Complaint (with insets provided by The Consumerist) tells an interesting story:


As you can see, the two McCormick tins appear to be the same size, but the quantities have decreased from eight ounces to six ounces.  The Watkins’ tin on the right contains six ounces of black pepper. Even though McCormick’s tin is clearly marked, we can see Watkins’ issue.  But, the real question is how many consumers actually purchase black pepper based on quantity versus the name brand to which they are accustomed? People know the McCormick name. We doubt Watkins has the same brand recognition. We question how many people faced with the perilous task of buying pepper, if any, have ever been torn with the choice between McCormick and Watkins and elected to buy McCormick because of the bigger tin? Certainly not us, as we are still trying to finish off the tin we bought many moons ago.

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