In a further development in the yogurt false advertising battle between Dannon and Chobani, the federal district court has rejected Chobani’s request that it reconsider and limit the scope of the injunction it issued in late January. As we blogged about here at The TMCA, the court earlier this year entered a preliminary injunction against Chobani’s “no bad stuff” advertising campaign about the sucralose sweetener used in Dannon’s yogurt products. The challenged ad claims contained statements such as “Sucralose? Why? That stuff has chlorine added to it” and suggested that the chlorine in the yogurt was the same as pool chlorine.
Chobani objected to a number of specific provisions of the injunction. In particular, it argued that the bar on using the phrase “no bad stuff” placed it at a competitive disadvantage by not being able to use the phrase as lawful puffery unrelated to a safety message. The court disagreed. While it stated that the phrase “no bad stuff” in the abstract might amount to puffery, “that was decidedly not the context in which the language was used” in the enjoined advertisements. Rather, the phrase 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 also admonished Chobani that the terms of the injunction it issued must also be viewed in context, and that the language objected to by Chobani could not be evaluated “in a complete vacuum.” As the court observed, the “twenty-five pages of discussion” set forth in its preliminary injunction memorandum and order “were not written gratuitously.” Rather, the opinion provided the reasons for granting the injunction in the context of three specific advertisements, thus justifying the scope of the order issued.
In addition to its unsuccessful motion for reconsideration, Chobani has appealed the district court’s order as well. So further developments are likely and will be followed on The TMCA.