Antitrust Law Daily Wrap Up, ADVERTISING—N.D.N.Y.: Chobani prohibited from representing Yoplait yogurt as unsafe, (Feb 1, 2016)

By Greg Hammond, J.D.

Chobani, LLC is barred from advertising that General Mills’ yogurt products—such as Yoplait Greek 100—contain a preservative “used to kill bugs.” The federal district court in Utica, New York, granted General Mills’ request for a preliminary injunction, finding that General Mills demonstrated a substantial likelihood of success on the merits of its Lanham Act false advertising claim, General Mills met its burden of demonstrating irreparable harm, and the balance of hardships and the public interest supported injunctive relief (General Mills, Inc. v. Chobani, LLC, January 29, 2016, Hurd, D.).

General Mills filed suit against Chobani, a competitor in the low fat yogurt market, alleging that “Chobani Simply 100 Greek Yogurt” advertisements made false statements about “Yoplait Greek 100” yogurt, including that “Yoplait Greek 100 actually uses preservatives like potassium sorbate. Potassium sorbate? Really? That stuff is used to kill bugs!” Alleging that Chobani engaged in false advertising in violation of the Lanham Act, General Mills sought a preliminary injunction.

The court first determined that General Mills demonstrated a substantial likelihood of success on the merits of its false advertising claim because it is likely that a factfinder would conclude that the challenged aspects of the Simply 100 Campaign unambiguously convey the literally false message that Yoplait Greek 100, which contains the same “stuff [that] is used to kill bugs,” is unsafe to consume.

Second, the court determined that General Mills met its burden of demonstrating irreparable harm because there is no question that the parties are in direct competition with regard to the yogurt products at issue, and the court found it easy to conclude that a logical causal connection exists between the alleged false advertising at issue and General Mills’ own sales position.

The balance of hardships also favored a preliminary injunction because Chobani could not assert an equitable interest in perpetuating false claims that specifically singled out a competitor’s product. Lastly, the court concluded that it is self-evident that preventing false or misleading advertising is in the public interest.

Chobani was therefore preliminarily enjoined from making the following claims in its marketing and advertising: (1) General Mills products, including Yoplait Greek 100, are unsafe because they contain potassium sorbate; (2) General Mills products contain “stuff [] used to kill bugs”; (3) Potassium sorbate is unsafe for consumers; (4) General Mills products are unsafe or harmful; and (5) the use of the term “no bad stuff” as it relates to General Mills products.

The case is No. 3:16-CV-58.

Attorneys: Jerry W. Blackwell (Blackwell Burke P.A.), Charles C. Sipos (Perkins Coie), and David L. Nocilly (Bond, Schoeneck & King, PLLC) for General Mills, Inc. Julia Huston (Foley Hoag LLP) and Douglas A. Foss (Harris Beach PLLC) for Chobani, LLC.

Companies: General Mills, Inc.; Chobani, LLC

Cases: Advertising NewYorkNews