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Is the Chobani Yogurt False Advertising Dispute a Sign of Growing Food Fights?

By Jeremy M. Creelan

On January 29, 2016, U.S. District Judge David Hurd in the Northern District of New York ordered Greek Yogurt maker Chobani to end its recent advertisements negatively referencing the products of its biggest competitors, Yoplait (General Mills) and Dannon.

Chobani’s series of advertisements that began running in early January 2016 advertised their “Chobani Simply 100 Greek Yogurt,” which has “100 calories per serving with no preservatives or artificial ingredients.” In one of the advertisements, a woman reads the ingredients on a cup of Yoplait Greek 100 Yogurt while a voice is heard saying, "Potassium sorbate? Really? That stuff is used to kill bugs." In another advertisement, a woman throws a container of Dannon’s Light and Fit into a trash can as a voiceover questions, "Sucralose? Why? That stuff has chlorine added to it."  As found by the court, sucralose is an artificial sweetener and potassium sorbate is preservative that prevents yeast and mold growth; both are used in many food products and they have been found safe by the federal government.

After Chobani filed a declaratory judgment action against Dannon in the Northern District of New York, Dannon asserted false advertising counter-claims under Section 43(a) of the Lanham Act against Chobani for allegedly false statements that were misleading consumers into believing their products were unsafe or harmful. General Mills filed suit against Chobani initially in the U.S. District Court in Minneapolis, but Chobani successfully moved to transfer the case to New York.

In separate decisions issued on the same day, Judge Hurd granted Dannon and General Mills’ motions for preliminary injunctions to stop Chobani’s ad campaign because the advertisements conveyed a “literally false message” that the competitor’s products are unsafe to consume.  Hurd ended both opinions with the same conclusion:  “Chobani is free to continue to spread its message about the value of selecting natural ingredients. It is not, however, free to disseminate the false message that [potassium sorbate/sucralose] renders [Yoplait Greek 100/Dannon’s products] unsafe to consume.”

On the heels of the major Lanham Act battle between the sugar industry and makers of high-fructose corn syrup that was resolved late last year, this yogurt ad case may suggest a growing resort to such claims in the competitive, multi-billion-dollar food industry.