On September 7, 2018, a California appellate court unanimously reversed the dismissal of a putative class action suit against Bayer Corp. (“Bayer”) regarding the “One A Day” gummy vitamins that deceptively have a recommended dosage of twice per day.
Judge William W. Bedsworth wrote the opinion, which found that a reasonable consumer would not turn the bottle around to read the “microscopic” instructions to take two vitamins per day when the front of the label proclaims the “One A Day” brand name in much larger print.
The court distinguished between products in which the dosage is not implicated in the name, conceding that “if this product were called Gaznorinplat Gummies or Every Day gummies,” a consumer might reasonable check the back of the bottle for dosage information. “But it is most decidedly not the case here. The front label fairly shouts that one per day will be sufficient.”
Plaintiff William Brady filed the suit in March 2016, claiming Bayer had violated California’s Unfair Competition Law, but a lower court dismissed the complaint based on the unpublished decision of Howard v. Bayer Corp., which alleged the same issue. However, the appellate panel disagreed with the Howard ruling and its notion that reasonable consumers are “back-label scrutinizers.”
“It may well be that many people – including some judges and lawyers – would make such an inquiry. It may well be that engineers and scientists and the vitamin cognoscenti would make such an inquiry. But we are convinced other consumers – knowing they have very little scientific background – would rely upon the representation of a known brand with 70 years of goodwill and credibility behind it.”
The Court considered four factors in concluding that Bayer had violated California’s consumer protection law: common sense, dichotomy between the front and back of the product labels, level of literal truth or falsity, and the misleading nature of the brand name, and found all favored the plaintiff.
Judge Bedsworth opined, “Bayer’s One A Day gummies cannot be said, as a simple application of common sense, to indicated that two gummies a day are required. Indeed, common sense flows in the other direction: If the label prominently displays the words ‘One A Day’ there is an implication that the daily intake should be one per day.”
The legal team at Shepherd, Finkelman, Miller & Shah, LLP (“SFMS”) has significant experience litigating class action and consumer protection matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier (email@example.com) or Chiharu Sekino (firstname.lastname@example.org). We can also be reached toll-free at (866) 540-5505.
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Simpson, Dave. “Suit Over Bayer’s Twice-Daily ‘One A Day’ Gummies Revived.” Law 360. Last modified on September 7, 2018.