Since the launch of Chobani in 2005, Greek yogurt sales have boomed and a multitude of Greek yogurt products have filled the shelves of grocery stores across the country. But there may be a dark side to everyone’s favorite yogurt product–debates over the disposal of one of Greek yogurt’s by-products may soon reach a head in New York state.

Greek yogurt’s claim to fame is that the liquid is strained out of it, making it thicker and more protein-rich. This straining process creates a byproduct called acid whey, comprised of lactic acid produced during the fermentation process. Like any other byproduct created in the food production process, acid whey must be disposed of in a responsible way that has minimal effects on the environment. Acid whey cannot be dumped near any bodies of water because it depletes water of oxygen, destroying the marine environment, and it also cannot be disposed of in a typical landfill because it would leach into the soil.  At the moment, yogurt producers have not discovered a way to recycle or reform the acid they so they can monetize it. Researchers have used filters to attempt to salvage reusable elements of the acid whey but so far, the thousands of gallons of acid whey produced in the production of Greek yogurt are the albatross around the neck of the yogurt industry.

In 2013, ModernFarmer published a piece on Greek yogurt that claimed that producers were not disposing of acid whey responsibly. Instead, they sold the acid whey to farmers who mixed it into their fertilizer or cow feed, even though adding too much acid whey to cow’s diets could have damaging effects for the animals. In response to the ModernFarmer article, John Lucey of the Wisconsin Center for Dairy Research defended the Greek yogurt straining process, calling it a “non-issue.” A research team at the University of Wisconsin-Madison has developed lactose-isolating technology that lets yogurt makers separate and resell the lactose in acid whey (although there is still waste left over that must be disposed of) and plans to continue its research on acid whey in the future.

Yet the red flag raised by the ModernFarmer article should not be completely ignored. Greek yogurt may not be a significant threat to the greater American public but it may still have negative impacts for New York farmers. Both Fage and Chobani, major Greek yogurt producers, have major factories in the state of New York–and it is farms within a comfortable driving distance of these factories that are most likely to receive acid whey to use for agricultural purposes. Acid whey is not a threat to national environmental standards but in the coming years, it may impact the farming community of New York, as it is concentrated within their properties.

The disposal of acid whey in New York farming communities is a relatively new practice, and in a decade’s time, both the soil and the livestock may witness minimal effects after the addition of acid whey to fertilizer and feed.  However, if acid whey does have a wide-spread impact on these farms, the yogurt producers could be responsible for placing an entire state at a disadvantage in the agricultural sector. Research on reusing acid whey is a step in the right direction but it should be paired with long-term research on the farms that have incorporated acid whey into their daily operations. If it does in fact have toxic effects on the environment and animals, it may be the farms of New York who will be the victims of that pollution, not the nation as a whole.

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

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Dov Seidman is the best-selling author of the book, How: Why How We Do Anything Means Anything, and if you haven’t heard of him, then you should go look him up. Former President Bill Clinton wrote the foreword to How, and Seidman is the CEO of LGN, a business that does the almost unthinkable: it reaches out to other businesses and helps them create more ethical cultures.

For the last ten years, Seidman has built his brand using the tagline, “How Matters.” Seidman’s do-gooding, however, may be lost on the Greek yogurt company Chobani, which wants to stop Seidman from using his trademark.

Chobani introduced its own “How Matters” campaign during a 2014 Super Bowl commercial, which featured a bear that buys a Chobani yogurt container. A voiceover states: “A cup of yogurt won’t change the world, but how we make it might,” which leads into the tagline: ‘How Matters.’  Jonathan Mahler of The New York Times reports that Chobani has built its brand around the phrase, which “highlight[s] the quality of its yogurt and the way it is made, including a straining process that makes it extra dense.”

Moreover, the inside of Chobani’s 100-calorie yogurt cup lids read, “‘Nature got us to 100 calories, not scientists. #howmatters.”

Earlier this year, Seidman sued Chobani and its advertising agency Droga5, which is partly owned by William Morris Endeavor, for trademark infringement. Ashley Lutz of the Business Insider reports that Seidman argues:  “They’re using ‘how’ to convey and connote that they are an ethical company. They are using ‘How’ exactly the way I use it. They’ve appropriated the foundation of my entire philosophy.”

Chobani and Droga5, however, have requested that the court cancel Seidman’s “How Matters” trademark because they believe it is too broad, and they have even filed their own trademark application for “How Matters.” Venessa Wong of BusinessWeek reports that Peter McGuiness, Chobani’s Chief Marketing and Brand Officer, stated that Seidman’s allegations are “baseless, desperate, and have no merit.” McGuiness further claims that “HowMatters” “speaks to our food philosophy,” which is a “beautiful and perfect articulation of what our brand is all about.”

Moreover, according to Mahler, Chobani and Droga5 claim they have never heard of Seidman, but ironically Seidman alleges that he had lunch with Droga5’s Vice Chairman, Andrew Essex, in 2013, who tweeted just days before the Super Bowl, “@DovSeidman: Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry, too?” Nevertheless, Mahler reports that court papers claim that “no one on the creative team for Chobani had ever heard of Mr. Seidman. The agency said the inspiration for its campaign came during a brainstorming session at a Thai restaurant with an open kitchen that underscored the importance of how food is prepared.”

Seidman may have a tough time proving that Chobani infringed his trademark, as they are designed to prevent consumer confusion; therefore, the biggest hurdle that Seidman will have to climb is proving how consumers will confuse a Greek yogurt company with a consulting firm.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [tbiley via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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