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WINSTON-SALEM, N.C. (WGHP) — The Winston-Salem company behind Texas Pete hot sauce asked a judge Thursday to toss out the pending class action lawsuit accusing the company of false advertising because Texas Pete isn’t actually made in Texas.

The class action lawsuit, filed by plaintiff Philip White on Sept. 12, claims that T.W. Garner Food Co. is deceptively marketing Texas Pete as a Texan product when it’s actually made in North Carolina. The complaint argues that the Texas branding ultimately hurts smaller companies in Texas that are trying to capitalize on the authenticity of their Texas hot sauce.

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 pay up.

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.”

Garner Foods was given until Thursday to formally respond to the complaint, and now the company has by filing to have the case dismissed.

On Thursday, an attorney filed a declaration saying that the attorneys for Garner Foods and the plaintiff Philip White met over teleconference on Nov. 3 to discuss dismissing the case. Unable to reach a resolution, T.W. Garner Food Co. filed the motion to dismiss. The motion is set for a hearing before Judge Maame Ewusi-Mensah Frimpong on Jan. 19.

That means White and the rest of Texas Pete’s customer base will have to wait another two months to find out if the class action lawsuit will move forward.

Where this all started

According to the complaint, Philip White was at a Ralph’s in Los Angeles when he bought a $3 bottle of Texas Pete back in September 2021.

“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.