Antitrust Law Daily Wrap Up, ADVERTISING—N.D.N.Y.: Chobani still banned from representing Yoplait yogurt as unsafe, (Apr 26, 2016)

By Greg Hammond, J.D.

Chobani was not entitled to reconsideration of an order prohibiting the company from representing General Mills’ Yoplait Greek 100 yogurt as unsafe, harmful, or that it contains “stuff” used “to kill bugs.” In denying Chobani’s motion, the federal district court in Utica, New York, determined that Chobani’s assertions that the preliminary injunction order was overly broad or impermissibly vague failed to warrant reconsideration (General Mills, Inc. v. Chobani, LLC, April 25, 2016, Hurd, D.).

General Mills, Inc. filed a Lanham Act false advertising suit against Chobani, LLC, 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!” The district court granted General Mills’ motion for preliminary injunction, which Chobani now seeks reconsideration of.

The portion of the preliminary injunction order that Chobani challenged prohibits Chobani from: (1) representing in marketing and advertising that General Mills products, including Yoplait Greek 100, are unsafe because they contain potassium sorbate, contain “stuff [] used to kill bugs,” and/or are unsafe or harmful; (2) representing that potassium sorbate is unsafe for consumers; and (3) using the term “no bad stuff” as it relates to General Mills products, including Yoplait Greek 100.

Chobani argued that these limitations placed the company at a competitive disadvantage because it completely precluded usage of the phrase “no bad stuff” in relation to General Mills products regardless of whether or not a safety message was at issue. In addition, Chobani pointed out instances where competitors in the industry used “nearly identical puffery.”

The court rejected Chobani’s arguments, deciding first that the motion must be denied as improper to the extent Chobani was attempting to re-litigate the permissibility of using the phrase “no bad stuff.” Second, each of the examples that Chobani cited was irrelevant to the facts in the instant case, and the preliminary injunction order specified that the phrase “no bad stuff,” standing alone or in the absence of a specific comparison to the safety of a direct competitor’s product, may very well amount to non-actionable puffery.

Lastly, the court found that Chobani’s claim that the challenged portion of the preliminary injunction order was overly broad was “only persuasive if one reads that portion of the order in a complete vacuum.” Although it was possible to hypothesize a usage of the phrase “no bad stuff” in combination with other images or phrases that related to General Mills’ products, but did not convey an express or implied safety message about potassium sorbate, the court noted that it was not required to describe all possible, permissible future commercials that Chobani may produce involving General Mills’ products. Chobani’s argument that the order was overly broad or impermissibly vague therefore failed to warrant reconsideration, the court decided.

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) 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