Mass-producer of tandoori supermarket breads won’t change packaging (much)
Friend v. FGF Brands (USA), Inc. is a modern-day, South-Asian themed take on the legend of John Henry: the battle of traditional manual labor against soulless industrial automation.
If you were paying attention in that American Studies class you took sophomore year, John Henry was a steel-driving man who punched steel drills into rock with nothing but his hammer and his legendary strength. He won a pyrrhic victory against a steam-powered machine in a rock-drilling contest – he died with his hammer in his hand after besting the machine.
The underlying theme of Friend v. FGF Brands is the same, but it doesn’t end in tragedy, and it tastes a whole lot better.
Feed of Clay
At the heart of the class action, filed by Illinois consumer Emily Friend in 2018, is naan, the delicious puffy bread familiar to every lover of Central- and South-Asian cuisines (but most popularly associated with Indian food).
Naan is traditionally produced in small clay ovens known as tandoors. These ovens, specially constructed and cured, are heated to extremely high temperatures (500-700 degrees Fahrenheit or above) during use. Naan dough is kneaded by hand, stretched by hand and slapped by hand on the interior walls of the tandoor. The bread cooks quickly and is plucked from the oven by the baker, usually with a set of metal tongs.
A naan-making team in action is a phenomenon that makes you proud of human capability. The deftness, rhythm and teamwork required to turn out the bread for restaurant or home consumption are hypnotic to watch – check out this team here, but be sure to watch them after you’ve already eaten a big meal.
Nonetheless, the clay cookery required to make naan capable of satisfying a purist means that it is difficult to produce satisfactory naan on a large scale. It was this problem that Florida-based FGF Brands claimed to address with a line of naan produced and packaged for the average consumer to take home from Whole Foods, Mariano’s and other supermarkets.
That’s where Emily Friend entered the picture.
Friend sued FGF Brands over package marketing for the company’s Stonefire Original Naan and Stonefire Original Mini naan, which she purchased “routinely” before she filed her class action in 2018. At issue were several claims made by FGF on its frozen naan products – that the breads were “Tandoor Oven Baked” and “TANDOOR OVEN BAKED TO HONOR 2,000 YEARS OF TRADITION.”
Friend did some digging and uncovered patents that FGF held for a “conveyor belt commercial oven system.” “The mislabeled Naan products are mass produced on a conveyor belt in a gas-heated commercial oven designed by Defendants to overcome the impracticalities of using a tandoor oven to mass-produce products,” Friend claimed. She quotes one of the company’s founders as saying that the oven was designed to produce 15,000 pieces of naan an hour.
The case, according to Friend’s unopposed motion for preliminary approval of class action settlement, was “in-depth and contentious,” featuring depositions, thousands of pages of production and 14 hours of settlement negotiations. FGF moved to dismiss in March 2019; the court denied FGF’s motion almost in its entirety.
“A reasonable consumer who sees naan pre-packaged and plastic-wrapped could believe that each piece had been baked in small quantities in traditional tandoor ovens – all the more so when that naan supposedly was ‘hand-stretched and tandoor oven-baked to honor 2,000 years of tradition,’” the court wrote.
Weary perhaps, and sensing a long and difficult trial, Friend and FGF came to terms in late September. The agreement awards $1.9 million to the consumer classes invoked by the suit, with individuals entitled to $2.50 per product with proof of purchase required after the first five claims.
According to the agreement, “While Defendants contend no change of labeling has been necessary to comply with any applicable laws, Defendants’ Product labeling currently states that the Products are ‘baked in our patented tandoor tunnel oven.’ Plaintiff agrees that no further labeling changes are necessary.” With that, the naan dispute went cold.
The takeaway? If you’re going to patent an alternative process for a traditional product, consider marketing claims that are about the comparison. If FGF had marketed naan “that tastes tandoor-baked,” for example, it might have avoided a lawsuit.
In any case, please excuse us – we’re starving. If you want to meet, we’ll be down at Panna II on First Avenue and 6th. We won’t be bringing back any leftovers.