Chobani loses first round of legal battle in Simply 100 false advertising spat, but says it is winning the war
Whether the provocative wording of the ads - and the legal firestorm that ensured - was a calculated move on Chobani's part, or a costly distraction that could have been avoided with more careful wording, is up for debate, but the saga has generated a lot of column inches.
Some industry stakeholders, for example, reckon it is high time marketers were challenged over claims that safe, legal and exhaustively tested food ingredients are 'bad stuff'; while others argue that big food companies are sending out mixed messages to consumers by defending some 'artificial' ingredients but making marketing capital out of excluding others.
Leading food companies would in turn argue that they are removing selected artificial ingredients in response to consumer demand, not because they are unsafe, although this message may be lost on many consumers.
The campaign: Did You Know Not All Yogurts Are Equally Good for You?
Chobani’s campaign - which flags up the use of so-called ‘bad stuff’ in rival yogurts and implies that Simply 100 is a better, healthier, choice – includes a print ad featuring pictures of Dannon Light & Fit Greek and Yoplait Greek 100, which opens with the question:
“Did You Know Not All Yogurts Are Equally Good for You? You think you are doing something good for yourself and your family…By buying yogurt instead of bad stuff…And then you find that the bad stuff…Is in your yogurt!”
Next to a picture of Dannon Light & Fit Greek it says: “There’s sucralose used as a sweetener in Dannon Light & Fit Greek! Sucralose? Why? That stuff has chlorine added to it.”
Next to a picture of Yoplait Greek 100, it says: “Look, there’s potassium sorbate as a preservative in Yoplait Greek 100. Potassium sorbate? Really? That stuff is used to kill bugs.”
Judge: It is self-evident that preventing false or misleading advertising is in the public interest
In a court order issued in New York, US district judge David Hurd said: “It is self-evident that preventing false or misleading advertising is in the public interest. If anything, this interest is heightened when the information pertains to serious issues, such as those concerning food safety.”
“Although Chobani suggested at oral argument that the question of potassium sorbate's safety is still the subject of legitimate scientific debate, there is little support in the record for that proposition.”
He also noted that sucralose was safe to consume and that the chlorine used in its manufacture was “distinct both chemically and practically” from calcium hypochlorite, or the ‘pool chlorine’ used in swimming pools.
Chobani is “free to continue to spread its message about the value of selecting natural ingredients,” said Hurd.
“It is not, however, free to disseminate the false message that sucralose renders Dannon's products unsafe to consume …. or that potassium sorbate renders Yoplait Greek 100 unsafe to consume.”
Dannon considers this first step a victory for consumers who love Light & Fit
Michael Neuwirth, senior director of public relations at Dannon told FoodNavigator-USA that Dannon “considers this first step a victory for consumers who love Light & Fit....
“Contrary to what Chobani has said, its Simply 100 ad campaign is not about providing consumers with choice. We have always used only safe ingredients to make a wide variety of yogurts that are enjoyed every day by millions of people.”
Mike Siemienas, manager, brand media relations, at General Mills added that Gen Mills “supports fair and vigorous competition” but believes that “false advertising only misleads and harms consumers.”
"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 shown to be non-toxic even when taken in large quantities, and breaks down in the body into water and carbon dioxide."
US district judge David Hurd
Chobani: We're committed to continuing the conversation
Chobani, meanwhile, said it respected the injunction, but noted that the judge had said it remained “free to continue to spread its message about the value of selecting natural ingredients”.
Chief Marketing and Brand Officer Peter McGuinness added that while Chobani had lost the first round of this particular legal battle, it was winning the war in the broader debate over 'natural' vs 'artificial' ingredients.
He added: “While we're disappointed by the preliminary ruling, we're committed to continuing the conversation and it’s good to see big food companies like General Mills starting to remove artificial ingredients from some of their products, like their cereals. In the end, if we can give more people more information while helping other food companies make better food, everyone wins.”
“Chobani ... says… that [claims that] itsproducts are ‘good’ or that General Mills's artificial ingredients are ‘bad stuff’—are merely‘puffery’…This argument is unpersuasive.”
US district judge David Hurd
Court order: The chlorine used in sucralose production is not the stuff used in swimming pools
Under the injunction, Chobani is prevented from making claims that state or imply that Dannon/Yoplait products are unhealthy because they contain sucralose/chlorine and that Chobani products are healthy because they do not contain these ingredients. It is also banned from using the term ‘no bad stuff’ as it relates to the Dannon/Yoplait products in question.
Sucralose is a molecule with 12 carbon, 19 hydrogen, 8 oxygen, and 3 chlorine atoms linked together in a stable form that is safe to consume, says the court order:
“Sucralose is manufactured 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 are known in the scientific community as a 'chloride,' a compound of chlorine that is bound to another element or group. Such chlorides are found throughout nature and in numerous natural food sources ranging from simple table salt to cow's milk.
“Pool chlorine, on the other hand, is a colloquial term for calcium hypochlorite, a powerful bleach and disinfectant that is harmful if added to food or ingested. This substance is distinct both chemically and practically from the chlorine atoms found in sucralose. Calcium hypochlorite is not found in, or used to manufacture, any of Dannon's products."
US district judge David Hurd
*The cases are: Chobani LLC v The Dannon Company, 3:16-cv-00030, filed in the Northern District of New York on January 8; and 0:16-cv-00052-MJD-BRT filed in the US District Court District Of Minnesota on Jan 10.
