Friday, January 29, 2016

Beware of Greeks bearing yogurt claims

General Mills, Inc. v. Chobani, LLC, No. 16-CV-58 (N.D.N.Y. Jan. 29, 2016)

GM also sued Chobani, and received an almost identical preliminary injunction, accompanied by an almost identical opinion, as that in Dannon’s case, reported earlier.  Yoplait Greek 100 was the other target of Chobani’s campaign.  The key difference is the video ad, which “opens with a woman seated behind the wheel of a vintage convertible, examining a cup of peach Yoplait Greek 100 yogurt.”  Narrator: “Yoplait Greek 100 actually uses preservatives like potassium sorbate.  Potassium sorbate? Really? That stuff is used to kill bugs!”  The woman scrunches her face in disgust and tosses the Yoplait, replacing it with Chobani “as the details of a roadside stand packed with fresh racks of produce become visible in the background.”  Voiceover: “Now, there’s Chobani Simply 100. It’s the only 100 calorie light Greek yogurt with zero preservatives.”  Happy woman consumes Chobani; camera pans to “reveal a happy child returning to the vehicle with a bag of produce in hand.” The  final shot includes a hashtag:  #NOBADSTUFF.

In the digital content, the Yoplait image is presented with several ingredients identified as “artificial” in large, red font.  Beneath the Yoplait image, the Chobani website describes potassium sorbate as both “an allowable chemical preservative for foods” as well as an “allowable minimum risk pesticide product.”

Potassium sorbate is generally recognized as safe by the FDA.  According to the U.S. Department of Agriculture, “few substances have had the kind of extensive, rigorous, long-term testing that sorbic acid and its salts [like potassium sorbate] have had.  It has been found it be non-toxic even when taken in large quantities, and breaks down in the body into water and carbon dioxide.”  In food products, it works to inhibit the growth of mold and yeast, and has been used widely and safely for decades in food products.  It’s also found in various pesticide products classified as “Minimum Risk” by the EPA and exempted from certain regulatory requirements.   

GM argued that the statement “that stuff is used to kill bugs” conveyed the literally false by necessary implication message that the potassium sorbate used in Yoplait Greek 100 rendered it unsafe to eat.  Chobani argued that its claims were literally true, and the rest of its claims were puffery. In context, however, the claims were literally false.  In the context of “no bad stuff” and the like, the ads painted GM’s yogurt as a safety risk because it contains potassium sorbate.

Presumption of irreparable harm from literally false comparative claim applied; even without a presumption, the inference of irreparable harm was easily made from the same circumstances, especially given the difficulties of quantifying the harm caused. 

Note: After I posted about Dannon’s victory against Chobani, I got a request from a Chobani PR person to update my story with Chobani’s “statement and social media post.”  In writing about legal cases, I try to confine myself to what’s in the opinion and, occasionally, the papers or other publicly accessible sources.  When I read the statement/social media post, I didn’t see any disagreement with the law or the facts, so I don’t think there’s any reason for me to include Chobani’s press release.

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