WINSTON-SALEM, N.C. (WGHP) — A California court says it won’t buck the false advertising case against the maker of North Carolina-based hot sauce Texas Pete, meaning this battle is only just heating up.

Filed by plaintiff Phillip White on Sept. 12, a class action lawsuit claims that T.W. Garner Food Co. is deceptively marketing Texas Pete as a Texan product when it’s actually made in Winston-Salem, North Carolina. White’s complaint, filed on behalf of all people in the U.S. who have purchased Texas Pete, asks the court to force Texas Pete to change its name and branding and to give money to past customers.

T.W. Garner Food Co. filed a motion to dismiss the lawsuit on Nov. 10.

On July 31, however, U.S. District Judge Maame Ewusi-Mensah Frimpong denied the motion to dismiss.

Why wasn’t the case dismissed?

Frimpong explains in her 20-page order what went into the decision to deny T.W. Garner Food Co.’s motion to dismiss.

“When considering the label as a whole, the Court finds that a reasonable consumer, relying
on the Products’ labels could believe—erroneously—that the Products originated in Texas,” the judge writes.

The branding

White’s legal team argued that a “reasonable consumer” could be duped into thinking that Texas Pete is a Texas product due to the brand name, the appearance of the solo white star and the lasso-wielding cowboy character on the bottle. T.W. Garner Food Co. countered, saying that the solo white star, lassos and cowboys are not unique to Texas.

“Though it is true that the imagery of the solo white star and lassoing caricature are not
exclusive to the state of Texas, taking the imagery and text of the label as a whole, this argument does not discount the possibility that a reasonable consumer would believe that the Products are based in or originate from Texas,” Frimpong writes.

The ‘Winston-Salem’ label

Garner Foods emphasized that the bottle includes a label to indicate that the product is made in Winston-Salem, but the court says the label is not clear enough.

“Contrary to T.W. Garner’s assertion that ‘the Product’s back label explicitly discloses its North Carolina origin,’ the back label contains no such ‘explicit statement of origin,’ as T.W. Garner claims,” Frimpong writes. “The back label states in four consecutive lines, all with decreasing font size:

May be partially produced with genetic engineering.

“A reasonable consumer would most likely read the reference to ‘Winston-Salem, NC 27105’ as a designation of T.W. Garner’s corporate address, particularly since it expressly does not say ‘manufactured in Winston-Salem, NC,’ ‘Product of Winston-Salem, NC,’ or even ‘Origin: Winston-Salem, NC.'”

The town of Texas, North Carolina

T.W. Garner Food Co. argued that the name “Texas Pete” does not necessarily refer to the state of Texas, and instead could be referring to the “coastal town of Texas, North Carolina.

While certain maps mark “Texas” as a small community near or within the unincorporated community of Shiloh in Camden County, it is virtually unknown even in Camden County. Camden County Library Branch Manager Alfreda Gordon told FOX8 she has never heard of “Texas, North Carolina” despite having lived in Shiloh for more than 40 years.

Frimpong calls T.W. Garner’s argument “unavailing.”

“Texas is one of the largest states in the United States and, Texas, North Carolina, appears to be relatively unknown, meaning that it is far more likely that a reasonable consumer will have the state of Texas top of mind when viewing the Products’ labels, not the ‘coastal town,'” Frimpong said.

Frimpong’s full order is included below.

Where this all started

Philip White was at a Ralph’s in Los Angeles when he bought a $3 bottle of Texas Pete back in September 2022, according to the initial complaint.

“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,” the complaint said.

The label includes “the famed white ‘lone’ star from the Texan flag together with a ‘lassoing’ cowboy,” images White’s complaint says are distinctly Texan.

To his shock, he later discovered that Texas Pete is not a product of Texas. In the complaint, he added that Texas Pete is a Louisiana-style hot sauce, not a distinctly Texan style, and does not use Texan ingredients.

In the product’s history, T.W. Garner Food Co. says the name was meant to evoke Texas’ reputation for spicy cuisine. The titular Texas Pete character is named after Sam Garner’s son Harold whose nickname is Pete.

Garner Foods acknowledged the suit in a statement to FOX8: “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.”