Judge Huck Yo Yo Yo-Plus

Yo Plus Cert

Does "probiotic" yogurt work as advertised? Should you pay more for it?

That's the question framed by this 1/11/10 class certification order by Judge Huck, which deals with Yoplait's "probiotic" yogurt, Yo-Plus.

Reading some of the advertised benefits, you would have to be a moron to think it works as claimed:

Yo-Plus, on the other hand, contains two ingredients not found in normal Yoplait yogurt; ingredientsthat, according to General Mills, “aid in promoting digestive health.” (Id. ¶¶ 5-6 (“these added ingredients . . . promote digestive health when included in a yogurt product such as YoPlus”).) In short, General Mills contends that regularly eating Yo-Plus aids in the promotion of digestive health in ways that eating normal Yoplait yogurt does not. See Mand. Decl., Ex. 1 at 3 (“Yoplait recently launched Yo-Plus, which is a yogurt with digestive benefits.”). Yo-Plus competes with Dannon’s Activia brand of probiotic yogurt (“Activia”), which also allegedly provides special digestive health benefits, and is the leader in the probiotic yogurt market. (Mand Decl. ¶ 7.)

General Mills commenced a nationwide marketing campaign to introduce Yo-Plus to the United States market in July 2007. (Id. ¶ 5.) The campaign, which endeavored to promote Yo-Plus’ “key benefit of digestive health,” (Id., Ex. 1 at 20), consisted of television commercials, print promotional materials with coupons, in-store advertising, promotions to health professionals, internet advertising, as well as the claims made on Yo-Plus packaging. (See Mand. Decl. ¶¶ 8, 35-89.) Between July 2007 and March 2009, when this case was filed, General Mills aired a series of eight different television commercials for Yo-Plus. (Id. ¶ 37.) One commercial introduces Yo-Plus as “a delicious new yogurt with special added cultures and fiber that naturally help regulate your digestion, which makes every day more positive.” (BloodDecl., Ex. 2, Plus Scale; Mand Decl., Ex. 14.) Another declares that “Yo-Plus’ unique blend of probiotic cultures plus fiber help your body regulate digestive health naturally.” (Blood Decl., Ex. 2, Direct Response Version One; Mand Decl., Ex. 19.) In addition to commercials, General Mills circulated print advertisements for Yo-Plus containing coupons. (Mand Decl. ¶ 49.) Some of these print advertisements make challenges like “[t]ry it for ten days and see how different you feel” and “[l]ove it or it’s free.” (See, e.g., Mand Decl., Exs. 38, 42.) Many of the print advertisements prominently display the word “probiotics” and “digestive” and emphasize the unique flavors, functional aspects, and good taste of Yo-Plus, and the fact that Yo-Plus contains fiber. (See, e.g. id., Ex. 39.) Additionally, the YoPlus.com website states, inter alia, that “Yo-Plus has a probiotic culture called [Bb-12] . . . clinically shown to support digestive health.” (Id., Ex. 59.) Further, Yo-Plus’ current packaging materials claim, for example, that “Yo-Plus contains special probiotic cultures and fiber to help naturally regulate your digestive health.” (Id., Ex. 6.) The inside of the original Yo-Plus packaging, which was revised in September 2008, states that one should “[e]at Yo-Plus every day to help maintain a balance of good-for-you bacteria in your digestive system and regulate digestive health.” (Id., Ex. 7; Id. ¶¶ 30-31.) The same packaging also explains that Optibalance is “a unique blend of beneficial bacteria (Bifidobacterium lactis BB-12) and a natural fiber (chicory root extract) that together help regulate digestive health” and “crowd out the unfriendly bacteria in your system and promote digestive health.” (Id., Ex. 7.)

Uh huh.

Judge Huck certified a class of Florida idiots, I mean, consumers.