A federal court in New York has amended the preliminary injunction entered against Kangadis Food Inc., doing business as The Gourmet Factory, originally requiring that the company send stickers to affix to all products sold as “100% Pure Olive Oil” and provided to wholesalers and retailers before March 1, 2013, because those products were actually made from Pomace, a processed oil made from olive pits, skins and pulp. N. Am. Olive Oil Ass’n v. Kangadis Food Inc., No. 13-868 (U.S. Dist. Ct., S.D.N.Y., order entered May 7, 2013). Additional information about the earlier injunction appears in Issue 482 of this Update. The stickers were intended to inform consumers that the products were not “100% Pure Olive Oil.”

The parties sought reconsideration after Kangadis indicated that it would prefer to recall its products from wholesalers and replace them with tins and bottles that do not contain Pomace. The plaintiff trade association agreed to allow this “voluntary” recall instead of a sticker program, but argued that the recall program must extend to retailers. The court allowed the recall, stating, “[B]y removing mislabeled tins and bottles from the marketplace altogether, a recall may actually achieve the Court’s goal even more completely than the sticker program.”

The court also determined that the recall must be extended to retailers. “Kangadis previously represented that ‘very little’ mislabeled product remained in its distribution chain,” the court stated, “but now acknowledges that whole pallets of mislabeled product may still remain in distributors’ warehouses. Moreover, whether mislabeled tins are in the possession of wholesalers or retailers, they are not less mislabeled, and will, when sold, cause no less irreparable harm to unwitting consumers and to [plaintiff ].” The court also noted that “Kangadis has a written recall policy, and just a few weeks ago told the USDA that a recent mock recall required only ‘3.5 hours to account for all product.’ Under these circumstances, Kangadis’ speculation about the quantity of mislabeled product held by retailers cannot justify curtailing the scope of the Court’s prior injunction.”