Sheehan - who challenged the ‘45% Less Sugar Than Other Yogurts’ claim on Chobani’s Less Sugar cups in a lawsuit filed in December 2020, and has also targeted the firm in his vanilla litigation – has followed up this month with a new complaint featuring claims one attorney described as "particularly weak and implausible."
Chobani is not commenting on the lawsuit (filed in the southern district of Illinois on May 16 on behalf of plaintiff Lori Gilker), which argues that Chobani Complete labeling is “false, deceptive, and misleading” on several counts, including:
- The name: The plaintiff argues that the term ‘Complete’ misleads reasonable consumers, as the yogurt “does not have all the necessary and appropriate parts related to an average consumer’s nutritional needs.”
- Advance Nutrition Yogurt: The plaintiff argues that this term is “false, deceptive, and misleading because the ingredients and composition are not beyond what others have already introduced into the marketplace.”
- Probiotics: The plaintiff queries the health benefits of probiotics for “persons who are already healthy,” and suggests that consuming the billions of good bacteria alleged to be in the product will not confer a health benefit because the human gut contains “tens of trillions of bacteria.”
- Plus symbol: The plaintiff also takes issue with the + symbol on the label (prebiotic + probiotic). This, he argues, does not mean ‘and’ (eg. this yogurt contains prebiotics and probiotics) but instead means ‘more’ (eg. this yogurt contains ‘more’ pre- and probiotics) and is therefore an "unlawful nutrient content claim" which Sheehan claims is also "misleading because there is no recognized or accepted number, amount or colony forming units of probiotics and prebiotics with which those in the product can be compared."
- Natural: Finally, the plaintiff takes issue with the term ‘only natural ingredients’ on the grounds that the monk fruit in the yogurt may have been extracted using “solvents and additives” that reasonable consumers would not consider natural (a term that is not legally defined on food labels except in the case of natural flavors).
Attorney: Key claim in lawsuit 'makes no sense...'
Adam Fox, a partner at law firm Squire Patton Boggs, told FoodNavigator-USA that the claims asserted in Sheehan’s latest case vs Chobani "strike me as particularly weak and implausible."
For a start, he added, the lawsuit takes issue with the term 'Complete Nutrition,' a claim that is not actually made anywhere on the packaging (the product name is Chobani Complete): "Paragraph 11 purports to identify how consumers will interpret the word ‘complete’ in a vacuum, but the law emphasizes context and on this product all the facts are available in the ingredient list and nutrition facts panel."
Similarly, Sheehan contends that 'the ingredients and composition are not beyond what others have already introduced into the marketplace,' yet the ingredient list specifies lactase as an 'ingredient not found in regular yogurt,' observed Fox.
'This type of inconsistency should doom the pleading'
Meanwhile, Sheehan’s contention that + means ‘more’ makes no sense in the context of the label, argued Fox: "In paragraph 36 through 40, the complaint makes much about ‘the + or plus symbol’ and what it signifies with respect to probiotics and prebiotics, only to dismiss its significance in the context of vanilla (in paragraph 41) because ‘consumers are smart enough to distinguish the context of the plus symbol.’
"This makes no sense... this type of inconsistency should doom the pleading. At a minimum, it foretells a hard road ahead for the plaintiff."
As for the ‘only natural ingredients’ claim, given that the FDA said it was looking into ‘natural’ claims on food labels a few years ago, Chobani could urge the court to stay the case on primary jurisdiction grounds (ie. to leave this to the FDA), he said, although it's unclear if this is still a 'live' issue for the agency.
“We have new leadership at FDA, so primary jurisdiction strikes me as a worthy argument to make even though the result is uncertain."
He added: “Even if the case proceeds, the case should run into a significant certification challenge because the notion that this plaintiff was moved to buy the product because of a plus sign or the word ‘natural’ is going to run into the reality that other consumers like the Chobani brand or even just the taste or texture of the product.”
Attorney: It seems clear that the plus sign is not being used a synonym for ‘more’
Ivan Wasserman, managing partner at law firm Amit Talati Wasserman, echoed Fox's arguments.
“From my review of the label it seems clear that the plus sign is not being used a synonym for ‘more,’ rather it is being used as an ‘and’ to show that the product contains both prebiotics and probiotics.”
The lawsuit itself notes that consumers are “smart enough to distinguish the context of the plus symbol” when it appears next to the claim ‘only real vanilla,’ said Wasserman. “The argument appears to actually be that consumers are smart enough to know what + means in one context, but are so dumb they think it means something entirely different a few millimeters away. Sigh.”
As for the ‘only natural ingredients’ claim, he said, it may be “found to pre-empted or simply dismissed since monk fruit extract is considered to be natural sweetener."
On probiotics, an area of vulnerability for food and beverage companies and one in which several high-profile brands have got into legal hot water in recent years in categories from yogurt to kombucha, Wasserman said:
“Statements in the complaint like there is ‘no credible evidence’ for probiotics’ and prebiotics’ ‘efficacy or usefulness to healthy people’ are demonstrably false. Of course they have been found to be efficacious by courts, regulatory bodies around the world, leading researchers and many more. While we may live in a world where facts no longer matter in politics, I think we are still in world where they do matter, and should carry the day, in courts of law.”
Sheehan: ‘I'm not saying that I do noble work…'
Sheehan – who has sued scores of food and beverage companies in recent years from Whole Foods, Halo Top and RXBAR to Conagra Brands and Nestlé over everything from underfilled pints to ‘made with real milk’ claims – says he understands why he’s not popular with food brands, who regard him as a shakedown artist ("I'm not saying I do noble work"), but rejected the argument that he is filing frivolous cases about technicalities without genuine victims.
In a recent interview with FoodNavigator-USA (look out for this next week), Sheehan conceded that aggrieved consumers were not the driving force behind his litigation given the technical nature of many of his lawsuits, but argued that consumer brands are exploiting the fact that most consumers don’t have a degree in food science, food law, or a detailed understanding of state consumer protection laws, and that plaintiff’s attorneys like him are simply ensuring brands play by the rules.
“Defendants will say, oh, all it is is a regulatory violation, a technical violation. And, you know, nobody was really harmed, no one is getting cancer. But rules are there for a reason, to ensure a fair marketplace.”
'In a tumultuous 2020, one thing stayed the same...' Class action lawsuits on the rise in 2020
Despite the interruption in civil litigation prompted by the COVID-19 pandemic, "more new class action lawsuits were filed against the food and beverage industry than in any other year of the past decade,” according to a recent analysis by law firm Perkins Coie.
“In a tumultuous 2020, one thing stayed the same: Plaintiffs’ class action lawyers continued to file plenty of lawsuits against manufacturers of consumer packaged goods (CPGs)."
Much of the increase in filing volume was down to Sheehan, who has filed scores of lawsuits alleging that brands’ representations regarding vanilla are false or misleading. However, judges are starting to lose patience with this particular strain of litigation, said Perkins Coie.
"2020 indicated an increasing impatience by the federal courts toward this onslaught of vanilla litigation, as courts in New York dismissed complaints challenging vanilla-flavoring claims four separate times over a 12-month period... In every instance, these courts have reasonably concluded that no 'reasonable consumer' is misled by a claim indicating that a product is flavored with vanilla when that product, in fact, tastes like vanilla."
According to the district court’s analysis in Pichardo v. Only What You Need, Inc: “When consumers read vanilla on a product label, they understand it to mean the product has a certain taste. It is difficult to comprehend what is misleading when the Defendant’s ‘Smooth Vanilla’ tastes like vanilla.”