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From Antitrust Law Daily, July 28, 2017

Bayer’s '2 gummies' serving size for One A Day brand vitamins not false advertising

By Elizabeth C. Pope, J.D.

Package labeling for Bayer’s One-A-Day chewable vitamins specifying a serving size of "2 gummies" per day did not violate California and New York false advertising laws, where a reasonable consumer would, prior to purchasing the product, look beyond the brand name to ascertain the suggested serving size, which was clearly displayed on the label, the federal district court in San Jose, California, has ruled. The court also rejected the consumer’s claims of unjust enrichment and breach of warranty (Goldman v. Bayer AG, July 26, 2017, Hamilton, P).

Bayer sells chewable multivitamins---"gummies," in Bayer’s parlance—under the trademarked brand name "One A Day VitaCraves." While the "front" of the round container for the product said the bottle contains "70 Gummies," elsewhere the label stated that the recommended serving is two "gummies" per day. Because the container is round, only a portion of the label is readable at any given time.

A consumer who purchased the multivitamins in California and New York complained he was injured by the package’s "deceptive" label: the recommended serving is two "gummies" per day, so the bottle contains only 35 days’ worth of vitamins, and not 70 days’ worth, as he thought when he purchased them. The consumer filed suit alleging violations of various state consumer protection laws; and, on behalf of a putative class, claims of unjust enrichment and breach of express warranty.

Statutory consumer protection claims. The district court granted Bayer’s motion to dismiss for failure to state a claim on all counts. Alleged violations of the state consumer protection laws at issue (i.e., California’s Consumer Legal Remedies Act; the bar against fraudulent business acts found in the California Business & Professions Code; and New York’s Deceptive Acts or Practices Law) are evaluated from the point of view of a "reasonable consumer." Under that test, the court explained, a plaintiff must show that members of the public are likely to be deceived.

In this situation, the court concluded, it is implausible that a reasonable consumer would look at only the front portion of a label that wraps around a round container of multivitamins and conclude from the combination of the brand name "One a Day" and the statement "70 Gummies" that the bottle contains 70 days’ worth of multivitamins. A reasonable consumer of medicine—or a medicine-like substance such as vitamins—would read the label to ascertain the dosage, the court concluded. A slight turn of the bottle would be enough for a reasonable consumer to see Bayer’s clear disclosures that the serving size is "2 gummies" and the number of "Servings per Container" is 35.

Unjust enrichment. The court also dismissed plaintiff’s assertion of an unjust enrichment claim on behalf of a purported "national" class. Under California law, a claim of unjust enrichment cannot stand without a cognizable claim under a quasi-contractual theory or some other misconduct. Here the consumer alleged only that Bayer was "unjustly enriched" as a result of its alleged deceptive labeling. But, the court explained, since there was no deceptive labeling, there could be no unjust enrichment.

Breach of warranty. The consumer argued that the "One A Day" language on the front of the bottle constituted a warranty that Bayer then breached by suggesting a "2 gummies" daily serving size. The court rejected this assertion. The brand name "One a Day" is not an affirmative representation. The entirety of the label, including the description of the contents as "70 Gummies" and the serving size information, formed the basis of Bayer’s bargain with the consumer. There was no breach.

The case is No. 17-cv-0647-PJH.

Attorneys: Janine Lee Pollack (Wolf Haldenstein Adler Freeman & Herz LLP) for Daniel Goldman. Ryan M. Sandrock (Sidley Austin, LLP) for Bayer AG.

Companies: Bayer AG

MainStory: TopStory Advertising CaliforniaNews

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