Do Consumers Know Better? Chobani, Facing False-Advertising Suit, Thinks So

Searcy Denney Scarola Barnhart & Shipley

As with cigarettes like American Spirit and other products, consumers have been conscripted into the crux of a legal battle against a food manufacturer and its Greek yogurt. Yes, you, I and millions of other Americans who have eaten or plan to eat the healthy dairy product conveniently packaged in a portable cup will decide who wins the case.

The case, Stoltz et al vs. Chobani, filed in June 2014, alleges the spoonable food’s labels confuse and deceive the public because they state “0%” and “evaporated cane juice.” The “0%” refers to nothing in particular, although the label since has been changed, and the “evaporated cane juice” is a euphemism, the plaintiffs argue.

According to the lawsuit, the defendants “prominently display the number zero (shown as “0%”) on the top and front of their Product packaging without providing any context as to what the 0% represents.” Further, “…‘evaporated cane juice’ is not ‘juice’ at all – it is nothing more than sugar dressed up to sound like a healthier sweetener.”

The question is whether consumers have been misled by the black-and-white. Would the reasonable person believe a flavorful and tasty product has no calories, fat, carbohydrates, etc., after reading “0%” on the label? Is he or she smart enough to know what “evaporated cane juice” really is?

“The reasonable person has not been dumbed down over the years, but not for lack of trying by the class-action plaintiffs’ bar,” an attorney unrelated to the Chobani case opined in an article on FoodNavigator-USA titled “Shoppers aren’t confused by our labels, Chobani tells court: ‘Plaintiffs count on a consumer who is a veritable fool’.”

But there is more to the story. The attorney, Rick Shackelford, published a four-page paper for the Washington Legal Foundation, eruditely discussing the characteristics of the reasonable person. While Shackelford notes each state interprets the term differently, he concludes the reasonable person is alive and well and might foil the plaintiffs in the yogurt case.

He writes, “… in a world of crowded litigation dockets, overtaxed judicial resources, and increasingly improbable legal theories, the most important role of the reasonable person may be standing guard to prevent meritless claims from going forward. In a state-law litigation environment where deception claims grow ever more fanciful, courts want him on that wall, need him on that wall – and should keep him on that wall.”

Chobani’s fate hangs in the balance of the reasonable person. The company’s attorneys, of course, claim the reasonable person is not misled by the black-and-white and accuse the plaintiffs of making the reasonable person out to be uninformed and oblivious.

“So, while plaintiffs’ theory counts on a consumer who is a veritable fool, that is not the law,” the FoodNavigator-USA article states. “The reasonable consumer is an ordinary person, acting reasonably under the circumstances.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Searcy Denney Scarola Barnhart & Shipley

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