NAD Recommends Chobani Modify ‘45% Less Sugar Than Other Yogurts’ Claim

Advertising Law

The National Advertising Division (NAD) has recommended that Chobani LLC modify its “45% less sugar than other yogurts” claim for Chobani Less Sugar Greek Yogurt products to clearly communicate the basis of comparison and avoid implying that “other yogurts” include yogurt products that use non-nutritive sweeteners.

The claim was challenged by Danone US, LLC, a manufacturer of competing yogurt products. The claim was made on product packaging, Chobani’s website, the websites of several online grocery retailers and multiple social media posts.

The issues in the case were the meaning of “other yogurts” and whether the “45% less sugar than other yogurts” claim was supported by evidence in the record.

The NAD noted that all dairy yogurts contain sugar because milk contains the sugar lactose. Yogurts differ with respect to added sugar content. To sweeten yogurts, manufacturers may use nutritive or non-nutritive sweeteners. Nutritive sweeteners are sweeteners that provide the body with calories, such as sucrose (cane or beet sugar), honey, agave, high fructose corn syrup and molasses. Non-nutritive sweeteners have low or no calories, such as artificial sweeteners like sucralose, aspartame and acesulfame-potassium, as well as plant-based sweeteners such as stevia.

To support the challenged “45% less sugar than other yogurts” claim, Chobani conducted a “market basket” analysis, which assessed the average sugar content of approximately 4,000 yogurts that it contended are substitutes for or competitive with the Chobani Less Sugar products. In this analysis, Chobani included flavored yogurts that are made with nutritive sweeteners but excluded yogurts made with non-nutritive sweeteners, plain/unflavored yogurts, yogurts with mix-ins (such as granola) and kids’ yogurts. Based on this market basket analysis, Chobani concluded that its Less Sugar products have 45% less sugar than other yogurt products.

The NAD determined that the “45% less sugar than other yogurts” claim reasonably communicates to consumers that the “other yogurts” incorporates all comparable substitutes to the Chobani Less Sugar products, which includes yogurts with non-nutritive sweeteners. Therefore, the NAD concluded that Chobani’s unqualified “45% less sugar than other yogurts” claim could reasonably convey a misleading message to consumers about the amount of sugar in “other yogurts.”

The NAD recommended that Chobani modify its claim to clearly communicate the basis of the comparison and avoid implying that “other yogurts” includes non-nutritively sweetened yogurt products.

In addition, the NAD found that reasonable consumers would not interpret the “45% less sugar than other yogurts” claim as a comparison between Chobani Less Sugar and plain yogurt products. The NAD stated that consumers seeking a lower sugar, sweetened or flavored yogurt—like Chobani Less Sugar—are unlikely to view an unsweetened, unflavored plain yogurt as a comparable product.

In its advertiser’s statement, Chobani stated that it agreed to comply with the NAD’s decision. Chobani noted that it “disagrees with certain aspects of [the] NAD’s decision,” but stated that “it will revise the [‘45% less sugar than other yogurts’ claim] disclosure to make it more clear that ‘other yogurts’ does not include yogurts made with non-nutritive sweeteners.”

manatt-black

ATTORNEY ADVERTISING

pursuant to New York DR 2-101(f)

© 2022 Manatt, Phelps & Phillips, LLP.

All rights reserved