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Vol. 9 - Issue 5
July 16, 2020

 

Self-Serve Froyo Goes To Court

 

 

 


 

 

Remember when frozen yogurt was not self-serve. You'd go into the froyo store and tell the person behind the counter what flavor you wanted, size and toppings. Then the person went to work putting it together. The whole thing was out of your hands. You had as much control over the quantity of sprinkles you'd get as you did the weather.

Then one day it all changed. Froyo became self-serve. You take a cup – only one size is available and it's what the large used to be – walk up to the machine offering your preferred flavor and gingerly raise the silver lever. The machine snaps to life and you twirl the cup around, slowly filling it with frozen yogurt from the sides to the middle. Then, at some point, the brain cell whose job it is to determine how much frozen yogurt you should eat at one time, sends an instruction to your hand to let go of the lever. All the while you can't believe you're actually doing this yourself. Surely this machine takes special training to operate, you always thought. Then you are off to the toppings bar. And you know what happens there. Six spoonfuls of sprinkles is a lot. But look how tiny they are. How fattening can they be?

Obviously the froyo industry figured out that if you offer it self-serve, and charge by weight, people will eat much more than if they had simply order a pre-determined size. For the froyo business, this was an life-altering as the invention of Penicillin. It's amazing it took as long as it did for them to realize this.

But froyo store owner Blake Lyle wasn't satisfied stopping here. Despite his Froyo What's Up, in Columbia, South Carolina, being self-serve, Lyle offered a second size cup. After all, even with the standard cup being as large as it is, he thought some customers might still want more. So Lyle dubbed the standard cup a size small and added a medium. This was the size of a Kentucky Fried Chicken bucket. If a customer asked for a large cup, the employees were instructed to say that they were all out of them.

Jimmy Gloop was a four-times-a-week customer at Froyo What's Up. Once the store began offering a size medium, Jimmy chose that and filled it up completely. After a month of eating about 15 pounds of froyo, four times a week, Gloop gained 35 pounds and became seriously ill.

Gloop filed suit against Froyo What's Up. In Gloop v. Froyo What's Up, LLC, No. 20-134 (Cir. Ct. S.C., Richland Cty., Mar. 3, 2020), Goop asserted claims for products liability based on failure to warn and deceptive trade practices. As Gloop saw it, there should have been a warning sign that eating too much frozen yogurt can cause weight gain and adverse health conditions. After all, everyone knows that yogurt is a healthy food. So a reasonable consumer would believe that froyo is simply a frozen version of this healthy product. Goop also alleged that, by calling the bucket size a medium, Froyo What's Up was portraying the consumption of 15 pounds of froyo as a reasonable quantity. After all, if a person really wanted to overindulge in froyo, they would buy a large.

Froyo What's Up recently filed a motion to dismiss and is having some problems getting its liability insurer to pick up its defense. I'll stay on top of this.             

 

That’s my time. I’m Randy Spencer. Contact Randy Spencer at

Randy.Spencer@coverageopinions.info
 
 
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