A New York federal court has rejected Chobani, LLC’s motion for reconsideration of a preliminary injunction preventing the company from claiming in its advertising that competitor Dannon Co.’s yogurt products contain chlorine and are thereby unhealthy, unsafe and inferior to Chobani yogurt. Chobani, LLC v. Dannon Co., Inc., No. 16-0030 (N.D.N.Y., order entered April 22, 2016). Chobani’s marketing campaign displayed an image of a swimming pool—which is cleaned with calcium hypochlorite, a substance colloquially referred to as “chlorine”—while asserting that Dannon Light & Fit® yogurt contained chlorine, one of four chemical elements that constitute sweetener sucralose. Additional details about the complaint appear in Issue 590 of this Update.

According to the court, Chobani argued that the “limitations place it at a competitive disadvantage because it completely precludes usage of the phrase ‘no bad stuff’ in relation to Dannon products regardless of whether or not a safety message is at issue. Indeed, Chobani’s memorandum goes on—for six pages, in fact—to point out instances where its competitors in the industry use ‘nearly identical puffery.’” The court acknowledged that “the phrase ‘no bad stuff,’ standing alone or at the very least in the absence of a specific comparison to the safety of a direct competitor’s product, may very well amount to non-actionable puffery,” but in this case, “a statement about something being ‘bad’ or ‘bad stuff’ can take on a specific, non-puffing meaning when connected to an express or implied factual assertion about a specific competitor’s product. [] This is especially so where, as here, that kind of ‘negative phrasing’ was employed ‘in connection with other statements and images that paint[ed] Dannon’s products as a safety risk because they contain sucralose.’” The court was unconvinced that the injunction order had been made in error and refused to grant Chobani’s motion to reconsider the decision.


Issue 602

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.