It's time once again to write about Pinkberry, even though SC has not eaten a single thing of theirs since the last time (and has no plans to ever, ever change that). As incredible as it may be, SC wishes to write in their defense over a language issue of such sublime ridiculousness ([and it IS ridiculous -- lime isn't even a flavor there -- Ed.]) that no reasonable English speaker could fail to agree. As will shortly be obvious, the candidates for unreasonable English speakers far outnumber the reasonable ones, and hold positions of power and influence within the government and legal system.
The story this time involves a lawsuit that first came to SC's attention through an article on the website of the local ABC affiliate, headlined "Lawsuit Claims Pinkberry Isn't Really Yogurt". No, really? As far as your host is concerned, it's not even food, but that's not actually the issue in question here. Here's the crux of the matter:
Steve Lyle, CA Dept. of Food and Agriculture: "The fundamental issue we have with Pinkberry is they manufacture the product on premises."
You see, Pinkberry's super secret ingredients are prepared at each of the companies [sic] 18 stores, not at a state licensed dairy facility. And that is a "fro-yo" no-no.
This is, to put it mildly, crazy talk. SC is not saying that it is ridiculous to grant exclusive licenses to use names based on place of manufacture, but that the reasonable grounds for doing so are wholly absent in this case. One example of an exclusive name use that SC has no problem supporting is Champagne (along with wine appellations more generally); although California wine producers used to fight vigorously to be able to call their products champagne instead of sparkling wine, with a somewhat mixed history of getting results by going to the World Trade Organization, they've largely thrown in with the makers of Champagne, Port, Sherry, and Chianti to agree that they'll all get ahead by protecting their names. (This may have been motivated by a dispute a few years ago where California winemakers found themselves on the defensive against Italian producers over the name Zinfandel.) More generally, wine appellations are part of a larger class of trademark law known as "geographical indications", protected by the World Trade Organization TRIPS agreement, which covers "indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographic origin". Along these lines, SC doesn't have much problem with people wanting to protect feta cheese, Parma ham, and basmati rice, all names referring at least in part to geographic facts about production, and not only to the products being produced.
"State licensed dairies", though, enjoy no such consideration from SC. A state licensed dairy exists wherever the state and a dairy producer decide that they do. The idea that frozen yogurt is yogurt because it was produced in a factory instead of on the premises where it is to be consumed is simply insane. However, as often happens with stories that appear too idiotic to be true, there's another angle. While the Department of Food and Agriculture spokesman quoted above makes the issue out to be one of whether or not the product is manufactured on the premises, the lawsuit in question also turns on whether or not Pinkberry's products meet some more relevant criteria of yogurthood; as Clara Peller might have asked, "where's the bacteria?"
The California Food and Agricultural Code provides a fairly detailed series of requirements for what frozen yogurt must contain to be labeled and sold as such, specified in Section 36991-36994. Specifically, frozen yogurt must: be made from milk, be fermented with one of three families of bacteria, not be pasteurized post-fermentation, have a titratable acidity of 0.5% (lower if it contains fruit), contain at least 3.5% milkfat, and weigh at least 4.0 pounds per gallon of. All of these are lab-testable requirements, and would appear to rule out Pinkberry's yogurt on the simple grounds that it doesn't cover nonfat versions of frozen yogurt, which Pinkberry most certainly claims their product to be (you can view the nutrition facts at their site, but it's Flash-based and so they can't be linked directly). However, plenty of foods are labeled as nonfat frozen yogurt for sale in California, and the 3.5% figure corresponds to an assumption of preparation with regular market milk (see Section 35784 -- that 3.5% is simply the standardized amount of fat in whole milk) so that would be a very weak argument to hang Pinkberry on. In fact, the more sophisticated argument against Pinkberry-as-yogurt turns on the question of bacteria. According to the L.A. Times, the privately-filed lawsuit spurring this issue claims that Pinkberry's yogurt does not pass the bacterial analysis needed to qualify as yogurt.
In order for an authoritative determination of Pinkberry's bacterial contents to be made, they would have to disclose their ingredient list and publish an accompanying lab analysis. Technically, Pinkberry is in violation of the Food and Agricultural Code here, too -- Section 33704.5 requires that if yogurt is manufactured and directly served on the premises, an ingredient list must be posted in a conspicuous location. Since their ingredient list is presently secret (not a tenable position, with only limited exceptions), from a consumer perspective there's no way to make this determination. This has led to all manner of innuendoes about exactly what goes into the product, some humorous, some more sinister.
So, what ingredients can be kept secret? Not much -- for a summary of Federal labeling requirements, look at page 2 of this consumer guide (prepared by the California Department of Public Health), which notes that everything has to be listed in descending order of contribution to the product by weight. Only those items identified by the Food and Drug Administration as "harmless markers", which basically means flavors or scents which have no discernable health impact (for the exact details, see paragraph (g) of 21CFR501.100, a section of the Code of Federal Regulations dealing with labeling exceptions). If Pinkberry is hiding a proprietary flavoring compound, they can apply for an exception to not disclose it publicly, but they can't hide a lack of bacterial content by claiming a trade secret.
At this point, the fiendish genius of the "no-state-licensing" attack becomes clear. Either Pinkberry admits that they're illegally running unlicensed dairies, or they admit that they're not really producing frozen yogurt. Both of these outcomes are damaging to their business, in a way that not all their competitors suffer from, and not necessarily for particularly sensible reasons. Contrary to the assertion in this L.A. Business Journal article, it is not the case that legally valid frozen yogurt "can’t be reconstituted from powder". It's just that the reconstituted yogurt has to have been prepared in a licensed dairy, and pass the lab analyses. It took SC only five minutes of looking in order to come up with a couple of "dry mix" yogurts that specifically pass the bacterial requirement (generally the problem in these cases -- see the ingredient list in the dry mix in the last smoothie on this Jamba Juice page for specific details). The technology for getting the bacteria requirement met in dry powders has been around long enough that the relevant patent has gone public domain, as well (albeit only recently). Of course, if Pinkberry is doing it this way, they need to be paying for dairy licenses, probably paying restitution for prior violations, and putting up their ingredient list as per the legal requirements. Their competitors, who have most definitely not all been posting their own ingredient lists, should be doing the same, even if they're buying their yogurt mixes from licensed dairies operating outside their stores.
On the other hand, if it isn't yogurt by the technical definition, they shouldn't be going down alone. While we dismissed the nonfat argument as weak previously, it's by no means reasonable that Pinkberry should be the only ones to take the fall on account of a failure to meet an arbitrary technical definition. Anybody who advertises "nonfat frozen yogurt" is contradicting themselves under the terms of the law as written, and it would be entirely reasonable for Pinkberry to take the position that if their "nogurt" is going down, they're taking the industry with them. The mere fact that the law is out of date shouldn't be the entirety of the issue -- if the state is going to get involved only over the question of where the powder was mixed, considering that there is absolutely no geographic indication in the term "frozen yogurt", it is simply absurd that their competitors should be able to advertise a noncompliant product and get away with it.
In conclusion, as much as it pains SC to say so, he sides with Pinkberry. That leaves an original-flavored sour taste in his mouth.