The National Advertising Division (“NAD”), a specialized dispute resolution forum administered by the Council of Better Business Bureaus, recently recommended that Chobani, Inc. (“Chobani”) revise its advertising for its Simply 100 Greek Yogurt. A challenge to Chobani’s advertising was filed with NAD by Yoplait Greek 100 (“Yoplait”), a competing brand of 100-calorie Greek yogurt. At issue in the challenge was Chobani’s television and online advertising.
First, NAD considered Chobani’s “Farmland” television commercial which was the centerpiece of its advertising campaign. Appearing in 60 second, 30 second and 15 second versions, the “Farmland” commercial shows Chobani’s yogurt coming from “a bucolic, wholesome farm” and the yogurt of its competitors as coming from “a synthetic, lifeless, chemical-laden sinister farm-scape.” While NAD found that consumers would not understand the commercial as a literal portrayal of the parties’ yogurt production, it nonetheless determined that the commercial conveyed a “broad, comparative message about Chobani versus competing products” that competing yogurt products are “made with artificial coloring, artificial fruit flavoring, and possibly artificial milk.” In particular, NAD noted imagery in the commercial that showed test tubes labeled with flavors being picked off synthetic trees by men in lab coats and a white powdery substance being dumped into cows as well as a voiceover stating that “most 100-calorie yogurts are made with artificial ingredients and sweetners.” NAD noted that Yoplait Greek 100 is not made with artificial flavors, colors or milk and recommended that Chobani discontinue the commercial.
Using similar logic, NAD also recommended that Chobani discontinue Facebook advertising that “Most 100-calorie yogurts use artificial sweeteners. We think Mother Nature’s sweet enough,” finding that such advertising misleadingly suggested that Yoplait and other yogurts are made with aspartame.
Finally, NAD also reviewed a Facebook post that showed three containers of different flavors of Chobani Simply 100 yogurts on a level platform along with text that: “It’s a three way tie for most delicious, naturally talented 100-calorie Greek Yogurt.” NAD noted the playful nature of the phrase “naturally talented” and found this portrayal to be puffery and concluded that consumers would not understand this imagery to represent the results of a taste test.
Take away: Claims that expressly or implicitly disparage a competing product must be accurate and narrowly drawn.
NAD's decision is available on its website: http://www.asrcreviews.org/category/enter-the-asrc-online-archive/