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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