Fraudulent Ads

ChobaniLast Friday a federal judge in Utica, New York, issued preliminary injunctions against ads for Chobani yogurt that disparage two competing brands, Yoplait and Dannon, by describing the artificial ingredients they contain as "bad stuff" that is hazardous to consume. Responding to complaints filed by General Mills (which owns Yoplait) and the Dannon Company, U.S. District Judge David Hurd concluded there is a "substantial likelihood" the plaintiffs can show Chobani violated the Lanham Act, which prohibits "unfair competition" through "false advertising." Although some may fault this sort of intervention on free-speech grounds, the Chobani ads do more than appeal to the arbitrary preference for "all natural" ingredients, which the government has no more business suppressing than any other religion. The ads also commit a kind of fraud by misleading consumers to believe the competing products are poisonous.

One TV spot shows a woman behind the wheel of a convertible parked at a fruit stand, scrutinizing the label of a Yoplait Greek 100 container, then disgustedly throwing it out in favor of Chobani's Simply 100 Greek Yogurt. While this is happening, a narrator says, "Yoplait Greek 100 actually uses preservatives like potassium sorbate. Potassium sorbate? Really? That stuff is used to kill bugs!" The hashtag #NOBADSTUFF appears at the bottom of the screen. Another TV spot shows a woman lying on a pool chair who goes through a similar routine with Dannon Light & Fit Greek Yogurt. In this case, the narrator says, "Dannon Light & Fit Greek actually uses artificial sweeteners like sucralose. Sucralose? Why? That stuff has chlorine added to it!" Chobani produced online and print ads that communicated similar messages.

Although both TV spots are literally true, Hurd notes, the implication that potassium sorbate and sucralose are unsafe for human consumption is not (citations omitted):

Potassium sorbate...is a "potassium salt of sorbic acid" that has been "generally recognized as safe" for human consumption by the U.S. Food and Drug Administration ("FDA"). According to the U.S. Department of Agriculture, "few substances have had the kind of extensive, rigorous, long-term testing that sorbic acid and its salts [like potassium sorbate] have had. It has been found to be non-toxic even when taken in large quantities, and breaks down in the body into water and carbon dioxide."...

Sucralose...is a "zero-calorie, non-nutritive sweetener" that has been approved by the U.S. Food and Drug Administration ("FDA") for human consumption since 1999. Sucralose has been extensively studied and the FDA has reviewed more than 110 safety studies in connection with its use as a general purpose sweetener for food.

Sucralose is a molecule with twelve carbon, nineteen hydrogen, eight oxygen, and three chlorine atoms linked together in a stable form that is safe to consume. The molecule is manufactured through a process in which three atoms of chlorine are "substituted" for three hydrogen-oxygen groups on a sucrose molecule. This trio of chlorine atoms are known in the scientific community as a "chloride, " a compound of chlorine that is bound to another element or group. Such chlorides are found throughout nature and in numerous natural food sources ranging from simple table salt to cow's milk.

Pool chlorine, on the other hand, is a colloquial term for calcium hypochlorite, a powerful bleach and disinfectant that is harmful if added to food or ingested. This substance is distinct both chemically and practically from the chlorine atoms found in sucralose. Calcium hypochlorite is not found in, or used to manufacture, any of Dannon's products.

Given the ambiguous meaning of chlorine (the element vs. the pool chemical) and the poolside setting of the TV spot slamming sucralose in Dannon yogurt, that ad is especially egregious. But even though it's true that potassium sorbate can be used "to kill bugs, " saying that a food contains insecticide without explaining that the insecticide is nontoxic to humans, especially when the ingredient is described as "bad stuff, " is also grossly misleading. It reminds me of the warning that e-cigarette fluid contains "antifreeze, " referring to glycerol and propylene glycol, two other food ingredients that the FDA deems "generally recognized as safe." Since the most familiar and commonly used kinds of antifreeze are toxic, the intent to mislead people is clear.

Hurd's injunction against the anti-Yoplait ads leaves Chobani free to "spread its message about the value of selecting natural ingredients, " as long as it refrains from claiming that "potassium sorbate is unsafe for consumers, " that Yoplait's products are "unsafe because they contain potassium sorbate, " or that they contain "stuff...used to kill bugs." His injunction against the anti-Dannon ads likewise is limited to claims that "sucralose is bad or unsafe for consumers, " that Dannon products "are unhealthy because they contain chlorine, " or that the sweetener has anything to do with "a dangerous chemical used to clean swimming pools."

Addendum: Peter McGuinness, chief marketing and brand officer at Chobani issued this statement about the case:

It's important to outline the difference between using only natural ingredients versus artificial ingredients so consumers can make more informed decisions. We're committed to continuing the conversation and it’s good to see big food companies like General Mills finally starting to remove artificial ingredients from some of their products, like their cereals and fruit snacks, and actively marketing and advertising their reformulations. In the end, if we can inform more consumers while helping other food companies make better food, everyone wins.

The problem is that the disputed ads do not help consumers "make more informed decisions." To the contrary, they impart misinformation, to the effect that competing brands contain poison. The idea that "everyone wins" thanks to Chobani's deception is plainly absurd; to the extent that the ads work, Chobani wins by misleading consumers. Its competitors lose, and so do consumers who worry needlessly or spend more than they otherwise would have because they are trying to avoid nonexistent toxins.

Fact:

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