It’s all Greek to me: chlorine claims over yogurt enjoined

Chobani, LLC v. Dannon Co., No. 16-CV-30 (N.D.N.Y. Jan. 29,
2016)

Chobani sued for a declaratory judgment that it wasn’t falsely advertising
about Dannon; Dannon immediately filed its answer and counterclaims, and the
court a bit over two weeks later granted a preliminary injunction against
Chobani.
 
Dannon Light & Fit is the leading brand of light yogurt
in the US, and Dannon’s top seller. 
Dannon added Light & Fit Greek as an eighty-calorie Greek nonfat
yogurt.  Dannon alleged that its highest
proportion of light yogurt sales routinely occurs during the first three months
of the year, “as this is the time when most American consumers resolve to make
positive changes relating to weight loss, fitness, and overall health and diet.”  It’s also the time of year when consumers
experiment with new yogurt products, making marketing and sales efforts during
each year’s first quarter crucial.
 
Chobani, meanwhile, actively seeks to differentiate itself
from its competitors in the Greek yogurt market by emphasizing its commitment
to “natural, non-GMO ingredients” and “environmental sustainability practices.”  Its latest offering, Chobani Simply 100 Greek
Yogurt, has “100 calories per serving with no preservatives or artificial
sweeteners.”  Its January 2016 campaign
included a TV ad, a print ad, and digital/social media content, all on the same
theme.
 
The video ad’s opening shot focuses on a cup of Dannon Light
& Fit Greek Yogurt sitting on a table, which is immediately picked up by a
young woman lounging in a pool chair. As she scrutinizes the ingredients label,
a voiceover proclaims:  “Dannon Light
& Fit Greek actually uses artificial sweeteners like sucralose.  Sucralose? Why? That stuff has chlorine added
to it!”  The woman scrunches her face in
disgust and tosses away the cup of Dannon yogurt.  She then chooses Chobani Simply 100 Greek
Yogurt, which is sitting on a table to her right, as a swimming pool becomes
visible in the background.   Voiceover: “Now, there’s Chobani Simply 100.
It’s the only 100 calorie light yogurt sweetened naturally.” “As she tears open
the packaging, the Commercial pans to a wide shot of the swimming pool, where a
child jumps in, making a big splash.  The
camera returns to the woman, now smiling contentedly, before finishing with a
wide shot.”  The final shot includes a
hashtag: #NOBADSTUFF.
 
The print ad’s headline is “Did You Know Not All Yogurts Are
Equally Good For You?”  It continues, “[y]ou
think you are doing something good for yourself and your family [b]y buying
yogurt and instead of bad stuff [a]nd then you find that the bad stuff* [i]s in
your yogurt!” The asterisk refers to a mouseprint footnote explaining that “bad
stuff” means “Artificial Ingredients.” The text above and below the Dannon
product displayed is the same as that in the ad. Further:  “If you want to do healthy things, know what’s
in your cup. Chobani Simply 100 is the only 100-[c]alorie Greek Yogurt without
a trace of any artificial sweeteners or artificial preservatives.”
 

Print ad
The digital content is similar.  The website asks “Do You Know What’s In Your Cup?
. . . . Scroll over to compare our ingredients with those in other light
yogurts to see what’s really inside[.]” 
Ingredients of Dannon’s product are identified as “artificial,” and the
site has a link to the print ad.
 

Digital content
Sucralose, which Dannon uses, has been approved by the FDA
since 1999, and Dannon provided evidence that the FDA reviewed more than 110
safety studies in connection with its use as a general purpose sweetener for
food.  Sucralose is a molecule with
twelve carbon, nineteen hydrogen, eight oxygen, and three chlorine atoms linked
together in a stable form that is safe to consume.  It’s made through a process in which three
atoms of chlorine are substituted for three hydrogen-oxygen groups on a sucrose
molecule.  This trio of chlorine atoms is
known as a chloride, that is, a compound of chlorine that is bound to another
element or group. Chlorides are found in many natural food sources, from table
salt to cow’s milk.
 
Pool chlorine, by
contrast, is a lay term for calcium hypochlorite, “a powerful bleach and
disinfectant that is harmful if added to food or ingested.” It’s distinct chemically
and practically from the chlorine atoms found in sucralose, and it’s not in, or
used to manufacture, any of Dannon’s products.
 
First, the court ruled that Dannon sought a prohibitory
injunction to return the parties to the status quo ante, rather than a
mandatory injunction requiring affirmative acts by Chobani.  Thus, the standard was no higher than that
applied as a result of Winter/eBay.
 
Likely success on the merits: Chobani argued that it was
literally true that sucralose had chlorine added to it, and that the other
challenged messages about “good” or “bad stuff” were mere puffery.  Nope. 
Although “no bad stuff” might be puffery if it weren’t tethered to a
comparative claim about Dannon, here Chobani used that phrase in connection with
statements and images that portrayed Dannon’s yogurt as a safety risk because
it contains sucralose.  Some of the
digital content didn’t give the full comparison, but it did include a link to
the full print ad.
 
Even if Chobani’s statements about “chlorine” were literally
true, there could still be literal falsity if the clear meaning, in context,
was false.  (The court wasn’t so sure
about literal truth.  The statement that
chlorine was “added to” sucralose was inaccurate, if sucralose is created by
adding chlorine to a precursor compound; sucralose doesn’t exist until the
chlorine is combined with the precursor, and adding additional chlorine to a
stable sucralose compound would likely have no effect.  Chobani’s own expert claimed that it was scientifically
accurate to say “chlorine has been added to form sucralose.”  A factfinder is likely to conclude that the
campaign unambiguously conveys the literally false message that Dannon’s
product contains sucralose and is therefore unsafe to consume. Chobani argued
that sucralose’s safety was the subject of legitimate scientific debate, but
the record didn’t support that claim: “the balance of record evidence reflects
that sucralose is an unusually well-studied compound repeatedly determined to
be safe for ordinary consumption.”  While
some research suggested that high doses could be toxic, that’s also true of
salt and water.  Further, it was “telling”
that Chobani’s own products contained the same type of “chlorine”—the chloride
found in all-natural, non-GMO milk, but Chobani made no mention of that fact.
 
Dannon was entitled to a presumption of irreparable harm given
the literally false direct comparative advertising at issue.  Even if such presumptions are illegitimate
because “categorical” in a way precluded by eBay,
Dannon still showed irreparable harm. 
Given the difficulty of showing how many sales or how much goodwill
would be lost, it was enough to show (1) competition in the relevant market and
(2) a logical causal connection between the alleged false advertising and the
claimaint’s own sales position.  That’s a
no-brainer here.
 
The balance of hardships also favored relief, since Chobani
has no protectable interest in advertising falsely.  And barring false advertising is in the
public interest, especially when it comes to serious issues like food safety.
 
The parties agreed on a $1 million bond, which the court
accepted. The injunction blocked the existing ads, as well as similar claims
related to chlorine content, healthfulness because of the presence or absence
of chlorine, the presence of pool chlorine in Dannon yogurt, the danger of
sucralose, the lack of safety of Dannon products, or “bad stuff” in connection
with Dannon products.

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