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Federal Judge Orders Withdrawal of Fraudulent Chobani Yogurt Ads

The company implied that sucralose and potassium sorbate made competing products unsafe for human consumption.

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Chobani

Last 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.

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89 responses to “Federal Judge Orders Withdrawal of Fraudulent Chobani Yogurt Ads

  1. Potassium sorbate stops yeast from budding. I plan to use some the next time I make hard cider. The potassium sorbate will allow me to sweeten the fermented cider without restarting yeast activity, and I’ll then carbonate it in a keg. That way it won’t be bone-dry.

    1. I have been fermenting my cider with low-attenuating ale yeasts. The finished product is off-dry (not sweet, but not dry either) when bottle conditioned.

      1. I don’t want it to be sweet, but I do want more sweetness than a English ale yeast leaves behind.

        1. I do malolactic fermentation and age with medium-toast French oak. I get about 1% residual sugar using London ESB or London III from Wyeast.

          1. That sounds like work. Think I’ll just ferment it out with my trusty US-05, add the preservative, sweeten to taste, and keg it.

            1. I’m just excited we’re talking about cider. 😀

              Making cider is a lot of work. I built a new press last year and ground and pressed about 1,500 pounds of apples. 😀

              DV10 champagne yeast is my standard. I’m also testing a wild ferment just to see what I get.

              1. Last year I took it easy. Only about 30 bushels. The previous year, I did 55 bushels.

            2. Yes, it is work.

              I ferment several kinds of apples separately; do malo and oak; then blend and use a fining agent to finish the cider. I bottle most of it, but I do keg some of it as well.

              1. Kinnath – sounds awesome. What kind of apples do you use?

                I don’t induce MLF but I’m sure some of it occurs naturally because I don’t use any sulfites or sorbates.

                I’m currently shopping for a pallet of bottles to put last year’s cider into.

                1. Currently using whatever grows locally. In general, I blend combination of crab apples, pie apples, and eating apples.

                  I have planted 2 dozen trees in my back yard half of which are classic English and French cider apples.

                  1. Remind me again when your coming to Ames….

                  2. Nice. I’m planning on planting a lot of trees once I get some land. I have a friend who I am planning to help graft a bunch of trees this spring. Right now I source from local orchards which means all dessert apples but we have some old varieties in Virginia that make some pretty good cider (Pippin, Winesap).

                    1. Most commercial orchards have crab apple trees. They are wonderful pollenators. So there are usually small blocks of crabs spread around the orchard.

                  3. Hungry for Apples?

      2. Did you ever try K cider? That stuff was really good, but apparently isn’t available in the states anymore. That’s what I’m trying to emulate.

        1. Never heard of it.

          1. It was in the stores for a while around 2000 I think. It was much more dry than the other ciders on the market at the time, and relatively high in alcohol. Came in these small (7oz?) bottles, so it stayed nice and cold. Great stuff. Then *poof* it disappeared. Haven’t seen it since.

            1. Have you had Farnum Hill Cider from NH? I think that is some of the best cider being made in America.

              1. Nope, but I’ll keep an eye out for it.

                1. Where are you? I know of awesome cider being made in VA, MA, NH, VT, NY, MD, PA, CA, OR, and WA.

                  1. I’m in ME. There are some good brands of hard cider around here, but they’re not cheap. I live in an area with lots of orchards, so I have no problem getting freshly pressed cider to ferment. I’ve also got a few beekeepers down the road. Maybe I’ll make a cyser. Doesn’t really matter right at the moment anyway since my primary carboy is full of pilsner and won’t be free for a few weeks.

                    1. I’d love to buy a few bushels of Black Oxford’s from Maine! I need to make a trip up to New England next fall and get some interesting varieties that don’t grow down here.

    2. I always use champagne yeasts to get rid of all the sugar. I like it dry and tart.

    3. This would probably work for lambic beers as well.

      1. Lambics go through a second fermentation that would otherwise appear to be spoilage. The process takes as long as a year.

  2. I’ve heard that Chobani actually contains dihydrogen oxide, and that even breathing as little as a tablespoon of that stuff can kill you!

    1. It’s also fatal if consumed in large amounts.

    2. Only if you live in Flint, MI.

    3. It probably has sodium chloride in as well.

    4. Big DiHydro (Koch?) keeps a lid on the whole thing.

  3. Chobani also receives a big, fat Greek subsidy from taxpayers.

  4. “Although both TV spots are literally true, Hurd notes, the implication that potassium sorbate and sucralose are unsafe for human consumption is not”

    Bailey gets a free pass on the precautionary principle–because he wrote a book attacking it.

    But without knowing what potassium sorbate or sucralose are, I’d favor an all natural competitor that didn’t contain them–because of what most people think of as the precautionary principle–and I have no problem with companies distinguishing their products from competitors on that basis.

    I think of it in terms of fallibilism, one implication of which is that the things that have been most thoroughly scrutinized are the things that are most likely to be true. Things that have been less well scrutinized are more likely to be dangerous. That isn’t fraud. That’s science.

    1. More jimsonweed in food. It is all natural. Less dihydrogen monoxide. It kills thousands every year.

      1. Yeah, cobra venom is all natural, too, and I won’t eat yogurt that contains it–because the toxicity of cobra venom has been confirmed through the rigorous scrutiny of thousands of years.

        Jimsonweed I’m less familiar with, but if one company’s product has something unknown and less tested scrutinized in it, and the other company’s product only contains milk and yogurt cultures, which one is safer?

        Confirming the results of other’s experiments has scientific value. If one hypothesis (say about safety) has been less thoroughly subjected to other people’s scrutiny and confirmation, then it isn’t as safe as a hypothesis about the safety of another ingredient that has been more thoroughly scrutinized and, hence more persuasively confirmed.

        1. What, you don’t like Habushu??

          C’mon man, there’s PERFECTLY safe ways of consuming cobra venom!! You just gotta denature it with alcohol and it becomes snake wine perfectly safe for human consumption.

        2. If it doesn’t kill you, Jimsonweed will make you trip balls. In a not too pleasant way, by most accounts.

    2. I think of it in terms of fallibilism, one implication of which is that the things that have been most thoroughly scrutinized are the things that are most likely to be true. Things that have been less well scrutinized are more likely to be dangerous.

      Since when is “true = safe” and “false = dangerous”, and since when “scrutiny = true”?

      The whole point of scrutiny is to distinguish truth from falsehood, and the whole point of that is to distinguish safety from danger.

      Maybe you meant something else, like “scrutiny = confidence”, but what you said is absurd.

      1. It was poorly worded. Things can’t be true. Statements are true or false. I think I get what he’s trying to say.

        1. Maybe, but then he follows it up with “but without knowing what potassium sorbate or sucralose are, I’d favor an all natural competitor that didn’t contain them” thus undermining the entire point. If you don’t know what “potassium sorbate” is, then by definition you have applied no scrutiny to the matter and thus have no basis to judge truth or falsehood and hence safety or danger. Favoring something branded “all natural” is applying an unscrutinized bias to the problem, which contradicts the previously stated preference for scrutiny.

          1. “If you don’t know what “potassium sorbate” is, then by definition you have applied no scrutiny to the matter . . .

            You still don’t get it.

            Because no scrutiny has been applied to determine whether an ingredient is safe should not make someone assume it’s safer than an ingredient that has been thoroughly scrutinized through safe consumption for thousands of years.

            1. And you still don’t get it.

              You have a bias borne out of your own preferences and not any application of the principles you claim to espouse.

            2. The problem is that apparently safe consumption for thousands of years does not equal thorough scrutiny.

      2. kbolino,

        Science isn’t truth. If the available evidence suggests something that is false, science requires the scientist to assert something that isn’t true.

        One of the problems with science is that new evidence could become available tomorrow that we didn’t have before. When that happens, scientists are required to change what they “know” to conform to the new evidence–certainly if the new evidence conflicts with what scientists knew before. In that sense, what science tells us is never absolutely certain. It always comes with at least some degree of uncertainty.

        The question is how much uncertainty?

        The scientific knowledge that has been more thoroughly scrutinized has less uncertainty than the scientific knowledge that has been less thoroughly scrutinized.

        1. The scientific knowledge that has been more thoroughly scrutinized has less uncertainty than the scientific knowledge that has been less thoroughly scrutinized.

          Jesus Fucking Christ Ken, can you be any more obtuse?

          That is exactly what I said, but not what you originally said.

          1. No, it isn’t what you said.

            “The whole point of scrutiny is to distinguish truth from falsehood, and the whole point of that is to distinguish safety from danger.

            Science does not separate truth from falsehood–it is the method by which we minimize our degree of uncertainty.

            Never confuse scientific knowledge with truth. Everything scientists “know” is limited by perspective, and science is merely the method by which they minimize their level of uncertainty–given the inherent limitations of science.

            1. Never confuse scientific knowledge with truth

              FFS — from your own mouth:

              the things that have been most thoroughly scrutinized are the things that are most likely to be true

              Argue with yourself in your own head, don’t drag other people into it.

              1. “most likely to be true” does not equal “truth”.

                “Minimizing uncertainty” = “most likely to be true”

                You ask me how safe purple dye #77 is for human consumption, and I’ll ask you how thoroughly it’s been tested. The more thoroughly it’s been tested for safety, the more likely the assertion that it’s safe for human consumption is to be true.

                The assertion that it’s perfectly safe will never be absolutely true–because new data could become available at any time showing that it isn’t safe after all.

                Did you hear they may have found a new planet recently? The more scrutiny that theory survives, the more likely the assertion that there’s another planet out there is to be true.

                1. I’ve had more productive discussions with mtrueman.

                  1. Maybe you should read some Popper instead.

                    http://plato.stanford.edu/entr…..#ProKnoVer

                    1. Maybe you should understand and apply what you are saying consistently…

      3. The knowledge that the earth orbits the sun, for instance, has been very thoroughly scrutinized, and, hence, our uncertainty about that bit of knowledge is very low. Contrast that with the uncertainty about string theory. We’re not even sure yet how to test that theory–much less have experimental data for other scientists to scrutinize. Therefore, what scientists “know” about the earth orbiting the sun is relatively less uncertain, and what scientists “know” about string theory is relatively more uncertain. Both bits of knowledge are always subject to change, however, when new evidence becomes available that conflicts with what scientists “know” now. Scientists cannot know anything with absolute certainty–not using the scientific method.

        What I’m saying is that the safety of eating natural ingredients that people have been eating for thousands of years without incident is less uncertain than the safety of eating compounds that people have only been eating for decades–because one has been more thoroughly scrutinized than the other.

        1. What I’m saying is that the safety of eating natural ingredients that people have been eating for thousands of years

          Find me such an ingredient. Every plant and animal under widespread human consumption has been altered by the agricultural practices we use to make them more readily available. Not to mention wide regional variations in what is eaten and how it is produced.

          If anything, potassium sorbate is easier to scrutinize than say “corn” or “wheat” or even “beef” because it has a clearer definition and is produced under stricter limitations.

          The Chinese have been applying balms and salves and other “medicinal” items made from plant and animal extracts for thousands of years and yet modern scrutiny basically shows most of them to be ineffective and sometimes harmful.

          1. “Every plant and animal under widespread human consumption has been altered by the agricultural practices we use to make them more readily available.”

            Yeah, the nature of the scrutiny matters. Still, we shouldn’t be prepared to say that something that has survived less scrutiny is safer than something that has survived more. If you want to make the case that the quality of modern scientific methods are such that the conclusions drawn from lab testing today are less uncertain than people eating ingredients that may have changed over the centuries, I might buy that. But don’t tell me that something that’s survived less and less rigorous scrutiny is more likely to be safe than something that has survived more and more rigorous scrutiny. Science doesn’t work that way.

            1. Science doesn’t work that way.

              Why do you keep bringing up “science” in a discussion about scrutiny?

            2. Any given homeopathic remedy is likely to be “safer” then just about any prescription medication you can get.

              The homeopathic remedy has undergone no scrutiny. The prescription medication has undergone countless trials.

              That said, the ruling was that the company could continue to say it was “natural” and that natural was good. What they couldn’t do was imply that their competitors had “bad stuff” in a misleading (if technically true) way. So I’m not sure what the beef is. People that share your preference for “natural” can be pandered to just fine.

              1. The effectiveness of homeopathy, to the best of my knowledge, hasn’t survived scrutiny. I’m unfamiliar with its safety–why would I worry about the safety of something ineffective?

                Pharmaceuticals have been shown to be effective (and some of them were derived from ethnobotany, by the way), but I would maintain that those pharmaceuticals that have survived the most thorough scrutiny as to their safety are the most likely to be safe.

                This isn’t just the way science works. That’s the way evolution works, engineering works, economics works, etc. The more an idea, adaptation, or innovation survives real world testing, the more likely it is to predominate. What I’m saying really shouldn’t be controversial. The more something survives real world testing, the more likely it is to be true–why is that controversial?

                Is it about anti-environmentalist baggage? Whether something less safe is worth the risk is another topic entirely.

                1. The more something survives real world testing, the more likely it is to be true–why is that controversial?

                  Because you keep changing the wording in ways that subtly (or not so subtly) alter the meaning, and you keep holding up a false example of what you claim to be saying?

                  I’m glad you have a fully formed thought in your head, but your inability to communicate it is half the problem (that, and your poorly chosen example).

                  1. I think I know what you mean by “real world testing,” but you’re still wrong because of observer bias. The scientific method helps to minimize mistakes due to observer bias. (Despite its use as a cover for people with agendas, like anything.)

          2. Find me such an ingredient. Every plant and animal under widespread human consumption has been altered by the agricultural practices we use to make them more readily available. Not to mention wide regional variations in what is eaten and how it is produced.

            It’s more than that though. Just because people don’t drop dead soon after eating artichokes doesn’t mean that their long-term safety has been subject to the kind of scrutiny Ken is claiming. In fact, potassium sorbate and sucralose have. If he’s claiming that it’s safer to avoid eating ingredients you’re unfamiliar with, I guess. But if you only apply that rule to scary-sounding chemicals, then no, it’s an arbitrary approach to the problem.

    3. I don’t want sucralose in my yogurt because it tastes weird. And isn’t it a laxative?

  5. I’m 71 years old. I have been eating GMO food for 20 years. I’m dying. I don’t expect to live more than 20 or 30 more years.

    What more proof do you need of the harms of GMO food?

    1. Newsflash pal, we’ve all been dying since we were born!

  6. Dreaming Cow is better anyway. Try the Maple Ginger.

  7. I disagree with this analysis. The nanny-state ruling will have unintended consequences. What’s really going on here? Greek yogurt is disgusting and they must resort to underhanded tactics to push it on unsuspecting consumers. The advertising ultimately will backfire if left alone.

    1. Why is it disgusting?

    2. “Greek yogurt is disgusting”

      … to you

      I like it better than the soupy mess that is regular yogurt and it doubles as a substitute for sour cream.

      1. The Lebanese make their own yogurt too.

        http://www.maureenabood.com/20…..he-recipe/

        It’s just not trendy yet.

        1. Hmm, I will have to look for it next time I go to a Lebanese place.

          1. Or I could make it, since the whole point of the article is to tell you how…

            /derp

      2. What is “regular yogurt” these days anyway? 90% of the stuff I see on the shelf should more accurately be labeled “milk-flavored gelatin”, sadly.

        1. Heck if I know. All I know is that stuff is soupy and sugary (in all cases, I am talking about the “plain” varieties, not the flavored ones) and largely useless.

        2. Yeah, everything is low fat too. There are 800 different kinds of yogurt on the shelf and it is almost impossible to find unflavored, full-fat yogurt.

          I think most of the “greek” yogurt is fairly real. But it’s still mostly low fat and too sweet.

    3. “It’s Greek!”

      Is non-Greek yogurt even available any more?

      1. Oh, yes. If you’re accustomed to the “Greek” variety, then you will be sorely disappointed by the “normal” alternative.

        1. I’ve never had Greek yogurt and other than “It’s Greek!” I haven’t heard why I should.

    4. Greek/Icelandic/Whatever yogurt is great because it’s actually thickened soured milk instead of corn starch thickened over-sweetened watery milk.

  8. TV ad: Yoplait yogurt has…BACTERIA!

    /Woman turns and runs towards camera frantically pulling out her hair. Stops, collects herself and says, ‘I only buy Chobani’s non-bacterial yogurt.’ /winks, grins and walks away calmly.

    http://science.howstuffworks.c…..ogurt1.htm

    1. Well, most of the fancier yogurts seem to advertise their bacteria. The pro-biotic thing is pretty trendy right now. The insane germophobes probably avoid the whole mess altogether.

  9. 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.

    Actually, a chemist would call the organic compound a chloro- compound. Chloro- is a prefix but that’s what the compounds would be called.

    Also, the smell you get from pool chlorine (bleach, hypochlorite) is elemental chlorine gas that comes from the decomposition of hypochlorite.

  10. I am pretty sure the libertarian position opposes federal sanctions against a truthful ad.

    1. Probably, regarding the federal sanctions. But this ad isn’t truthful. The #nobadstuff hashtag, combined with pointing out examples of competitors’ ingredients that Chobani doesn’t contain does imply–with no supporting evidence–that those ingredients are harmful.

  11. Am I the only one who thinks the name Chobani sounds kind of vulgar? Dude, don’t be such a Chobani.

    1. Yes, you are the only one.

      Although anything sounds dirty if you say it right.

      1. I guess I’m the only chobani around here then.

  12. 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.

    “Pool chlorine, on the other hand, is a colloquial term for calcium hypochlorite”
    Sodium hypochlorite (bleach) is a far more common oxidizer used in sanitizing pools.

    “harmful if added to food or ingested”
    And occasionally bursts into flames when it comes in to contact with organics..

  13. This is goofy. Sullum claims, as does the judge, apparently, that the ads suggest the competing products are unhealthy due to containing certain compounds. But the literal quotes Sullum includes in the piece don’t indicate any such thing.

    Furthermore, a supposed libertarian blog post citing the FDA as a legitimate authority in anything is just totally asinine. Certainly more ridiculous than this Chobani ad.

    Finally, Sullum, and a lot of commenters here, seem to take the position that “if it isn’t proven bad then you should go ahead and eat it.” Or, to be a little more fair, “if the FDA signed off on it a long time ago and no one has had any corresponding negative effects as a result, then you should be fine eating it.” But that principle can’t be applied in general because no one can possibly know all of the research behind every possible food ingredient – even the so called “natural” ones. So the real principle that we should all follow is: If I don’t recognize an ingredient as healthy, I don’t eat it. And that’s what the Chobani ad appeals to. Ergo, Chobani appeals to the only possibly correct approach that can be uniformly correctly applied in all possible cases. And yet Sullum has a problem with it.

    Argument lost.

    All this is is the state using threats of violence to quell demonstrably non-fraudulent speech. Not libertarian…. And neither is Sullum.

    1. Finally, Sullum, and a lot of commenters here, seem to take the position that “if it isn’t proven bad then you should go ahead and eat it.” Or, to be a little more fair, “if the FDA signed off on it a long time ago and no one has had any corresponding negative effects as a result, then you should be fine eating it.”

      No one said either of those things.

  14. Accurate or not, Chobani should have the freedom to disparate competitors in this way. The Lanham Act is an infringement on free speech.

    1. disparage, that is.

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