A federal judge has barred Chobani from continuing an ad campaign that likens Yoplait yogurt to bug spray, a response to General Mills’ suit against Chobani for false advertising.
Chobani also has been prohibited from continuing a separate but similar ad campaign against Dannon, another major U.S. yogurt brand. Both preliminary injunctions against Chobani were issued by David Hurd, a judge for the U.S. District Court of Northern New York.
Golden Valley-based General Mills has demonstrated it could be “irreparably harmed” by Chobani’s ads and that the company would have a “substantial likelihood of success on the merits of its false advertising claim,” Hurd wrote. He came to similar conclusions regarding Dannon’s claims against Chobani.
Chobani, in a statement, said that while it was “disappointed” with the court’s decision, the company will continue “to provide consumers with more information about natural ingredients versus artificial ingredients.” A Chobani representative said the company had stopped running the now-barred ads, as planned, within the last week.
Chobani, one of the big three in the yogurt business along with Yoplait and Dannon, launched ads earlier this month touting the naturalness of its own Simply 100 Greek yogurt, and claiming that Yoplait Greek 100 contains a pesticide to “kill bugs.” General Mills contends that Chobani falsely claimed Yoplait Greek 100 was “toxic” because it contained a preservative called potassium sorbate.
While potassium sorbate can be used as a “minimum risk” ingredient in pesticides — along with cloves, cinnamon and garlic — the preservative is generally recognized as safe for human consumption by U.S. food regulators.
Hurd wrote that, according to the U.S. Department of Agriculture, “few substances have the kind of extensive, rigorous long-term testing that sorbic acid and its salts [like potassium sorbate] have had. It has been found to be nontoxic even in large quantities.”
In a statement, General Mills said it was “pleased” with the court’s ruling.
“General Mills supports fair and vigorous competition between companies, but false advertising only misleads and harms consumers,” the company said.
Dannon, the U.S. arm of French yogurt giant Danone, also said it was pleased with the ruling. Chobani’s ads criticized Dannon’s Light & Fit yogurt because it contained sucralose, an artificial sweetener processed with “added chlorine.” Sucralose is a commonly used artificial sweetener, particularly in diet sodas, that has been extensively reviewed by food regulators.
Sucralose is a molecule manufactured by the addition of three atoms of chlorine, a trio “commonly known in the scientific community as ‘chloride,’ ” according to Hurd’s order. Pool chlorine, a bleach that’s harmful if added to food, is “distinct both chemically and practically from the chlorine atoms found in sucralose.”
Chobani, based in upstate New York, began producing Greek-style yogurt in 2005 and essentially turned it from a niche product into a juggernaut. As Chobani grew, it took market share away from both Yoplait and Dannon, both of which eventually responded with their own Greek-style yogurts. Chobani still leads the category.
In responding to General Mills and Dannon’s lawsuits, Chobani argued that its ad claims about potassium sorbate and sucralose are merely “puffery” statements of Chobani’s own opinion about the superiority of its own natural products, Hurd wrote. Puffery statements in legal terms can be perceived as “sales talk,” and the audience can’t be deceived by it. Hurd wrote that Chobani’s puffery argument is “unpersuasive.”
Chobani said it will “continue its mission” to call on food makers to use natural ingredients. “This is not a marketing campaign, it’s a mind-set campaign,” Chobani Chief Marketing Officer Peter McGuinness said in a statement.
General Mills’ suit against Chobani was initially filed in U.S. District Court in Minneapolis but moved to the northern district of New York where litigation between Dannon and Chobani was pending.