Legally Weird - The FindLaw Legal Curiosities Blog

'Hawaiian' Potato Chips Sued for Misleading Name

Perhaps it's the century or more that their culture was systematically dismantled and almost destroyed completely that makes Hawaiians especially protective of certain words, phrases, and concepts, along with the very descriptor, "Hawaiian."

They weren't too happy when a Chicago eatery called itself Aloha Poke, and tried to trademark the phrase, to say nothing of the mainland's general bastardization of the concept of aloha or the poke dish. And some mainland customers were none too pleased when they found out the "Hawaiian" beer they were drinking wasn't so Hawaiian.

And now some locals and mainlanders are teaming up to take on potato chips. Or at least one chip company, Pinnacle Foods, whose "Hawaiian" potato chips are [GASP] made outside of Hawaii and without Hawaiian ingredients.

What Makes Dollars and What Makes Sense

Michael Maeda of Honolulu and Iliana Sanchez of Los Angeles claim Pinnacle and Tim's Cascade Snacks are using false and deceptive advertising and fraudulent and unfair business practices by marketing a line of chips and rings as "Hawaiian Kettle Style" even though they are made in a factory in Algona, Washington. While the packaging doesn't specifically state the chips are made in the Aloha State, it does feature images of hula dancers wearing grass skirts, others in leis or other traditional Hawaiian dress, and several iconic Hawaii landscapes -- enough to convince an average buyer they were purchasing an authentic Hawaiian product, according to the lawsuit.

"We know 'Luau Barbeque Rings' doesn't make sense," Jeff Leichleiter, one of the co-founders of Tim's, told Hawaii Business Magazine in 2011, "but 98 percent of the country doesn't know. The Hawaii image is a powerful brand -- and it's done well for us."

Doing Well and Doing Good (Legally)

Just because a company puts geographically specific imagery on a package doesn't necessarily make it false advertising, just like a company's claim to selling a "World Famous" product can be passed off as mere puffery. But, as we noted above, Hawaii is a little different. Under Hawaii's commercial code:

No person shall ... solicit for the sale of any item, product, souvenir, or any other merchandise that is labeled "made in Hawaii" or that by any other means misrepresents the origin of the item as being from any place within the State, or uses the phrase "made in Hawaii" as an advertising or media tool for any craft item that has not been manufactured, assembled, fabricated, or produced within the State and that has not had at least fifty-one per cent of its wholesale value added by manufacture, assembly, fabrication, or production within the State.

Perhaps appropriately, Pinnacle requested to move the case out of state and into federal court. The plaintiffs are seeking a jury trial to prove that they were misled. And the battle over Hawaiian identity continues...

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