Welcome to our Media & Marketing law blog, which is dedicated to developments and commentary in media and marketing matters, including trademark, copyright and advertising.
Perry J. Narancic focuses his practice on representing both businesses and individuals throughout the San Francisco Bay Area in technology, intellectual property and business matters, especially in trade secret, copyright, trademark, patent, securities and other business litigation. He is a principal of litigation boutique LexAnalytica, PC.
MEDIA & MARKETING LAW BLOGon Trademark, Copyright and Advertising
False Advertising and the Case of the “Poison” Yogurt
By:Perry J. Narancic
March 10, 2016
In General Mills v. Chobani, LLC, a federal court in New York showed how false advertising laws can be used to stop a competitor’s advertising, even if the language used was technically true. The plaintiff, General Mills, sold a yogurt product called “Yoplait Greek 100”. The defendant, Chobani, sold a yogurt product called “Simply 100 Greek Yogurt”. Chobani marketed its product as a healthy, all-natural product. As part of a marketing campaign, Chobani advertised that “Yoplait Greek 100 actually uses preservatives like potassium sorbate. Potassium sorbate? Really? That stuff is used to kill bugs!”
General Mills brought suit, and sought an injunction prohibiting Chobani from making this claim. The Court noted that the record did in fact support the assertion that potassium sorbate was found in pesticide products classified by the US Environmental Protection Agency as “minimum risk pesticide products”. However, the record also showed that potassium sorbate is widely used as a food preservative.
The Court noted that the Lanham Act prohibits advertising that (a) is literally false, as a factual matter, or (b) is literally true, but is likely to deceive or mislead customers. The first type of claim for literal falsity includes statements that are explicitly false on their face, or false by implication. Under this “false by implication” standard, the test is whether “the relevant audience would recognize the false implied claim as if it had been stated explicitly.” The Court agreed with General Mills that the statement “that stuff is used to kill bugs” (even though literally true) conveys a literally false message that potassium sorbate used in Yoplat Greek 100 renders it unsafe to eat. In other words, literally true words may nonetheless convey a literally false message. In this case, the Court relied on evidence that “potassium sorbate is a well-studied compound repeatedly determined to be safe for a variety of uses”. The evidence before the Court, therefore, showed that potassium sorbate is used both in poison, and as a preservative in food.
This case shows an interesting twist in advertising law because it relied on the “false by implication” theory of liability. This test (which is part of the “literally false” branch of analysis) is distinct from the “misleading” branch of false advertising. The latter requires a plaintiff to show evidence (like a survey) that a substantial number of customers are likely to be deceived. But under the “literal falsity” test, deception is presumed and no such evidence is required. In this case, the Court relied on the “false by implication” test for literal falsity to obviate the need for evidence of deception.