Chobani recently suffered a major setback in its battle with Dannon over the advertising of low-calorie Greek yogurt. Judge David Hurd of the Northern District of New York issued a preliminary injunction on January 29, 2016, barring Chobani from continuing its “Simply 100” campaign—a compendium of television, print, and online ads touting Chobani’s Simply 100 Greek yogurt as containing no artificial sweeteners or preservatives as compared to Dannon’s Light & Fit Greek yogurt. See Chobani, LLC v. Dannon Co., No. 3:16-CV-30, 2016 WL 369364, at *8 (N.D.N.Y. Jan. 29, 2016).
Chobani’s Ads. Chobani’s ads attack Dannon for adding sucralose, an artificial ingredient made by adding chlorine compounds to sucrose molecules to form a chloride, to its yogurts. A Chobani television commercial features a woman sitting by a pool, inspecting the ingredients of Dannon’s Light & Fit Greek yogurt, with a voiceover exclaiming that the product contains artificial sweeteners like sucralose, which contains added chlorine. The woman discards the Dannon product and instead chooses Simply 100 Greek yogurt, with a voiceover claiming that Chobani is “the only 100 calorie light yogurt sweetened naturally.” The scene cuts back to the pool with the final shot, which includes the hashtag “#NOBADSTUFF.” Chobani’s print and electronic ads include similar messages and images.
The Litigation. Chobani extended its attack to the courtroom, seeking a declaratory judgment that its “Simply 100” campaign was not false, misleading, disparaging, or deceptive under the Lanham Act, 15 U.S.C. § 1125(a). Dannon struck back, asserting Lanham Act and related state law false advertising counterclaims. It also moved for a preliminary injunction to prevent Chobani from continuing its “Simply 100” campaign pending a trial on the merits.
Chobani’s Defense. Chobani contended that the statement that sucralose contains added chlorine is literally true and that the remainder of its messages were mere “puffery”: expressions of Chobani’s own opinion that its products are superior.
The Court’s Decision. The court disagreed. It concluded that Chobani’s “Simply 100” campaign conveys the literally false message that sucralose in Dannon’s Light & Fit Greek yogurt contains added chlorine, rendering the product unsafe to eat. However, the FDA has determined that sucralose is safe; the chloride compound created to manufacture sucralose is found throughout nature and in numerous natural food sources. By contrast, pool chlorine is a powerful bleach and disinfectant that is harmful if added to foods or ingested. The language and images (such as the pool scene) in Chobani’s ads conveyed the false impression that the chlorine in sucralose is harmful and unsafe.
The court concluded that Chobani’s direct attacks against its competitor’s products were more than mere “exaggeration[s] or overstatement[s] expressed in broad, vague, and commendatory language.” 2016 WL 369364, at *8 (citation omitted). And even if the statement that chlorine was added to sucralose were literally true, “the message conveyed by the advertisement may still be ‘literally false’ if its clear meaning, considered in context, is false.” Id. (emphasis added). Here, a consumer could readily conclude that the entire context of the “Simply 100” campaign “unambiguously convey[s] the literally false message that Dannon’s product contains sucralose and is therefore unsafe to consume.” Id. at *9. Dannon thus had met the requirements for a preliminary injunction: (1) it was likely to prevail on its Lanham Act claim; (2) it was likely to suffer irreparable harm if Chobani continued its campaign; and (3) the balance of hardships and public interest weighed in Dannon’s favor.
Key Takeaways. As Chobani demonstrates, a puffery defense typically is not effective against Lanham Act and related state law false advertising claims if the ads at issue directly attack a competitor. The decision also demonstrates the importance of analyzing an allegedly false claim in context. While Dannon used this argument offensively, relying on the full context of an advertisement can also be a successful defense to false advertising claims if the defendant can show that the advertisement as a whole clarifies any ambiguities or allegedly misleading statements. Chobani is a reminder to advertisers to consider the full context of their ads, and not to assume that “puffery” offers an easy way out of alleged falsity.