Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Bayer could be liable for labeling One A Day vitamins as “supports physical energy”, (Mar 12, 2015)

By Linda O’Brien, J.D., LL.M.

Two consumers stated sufficient facts to pursue false and misleading marketing claims against pharmaceutical company Bayer AG over its statements that its One A Day brand multivitamin supplements “support physical energy,” the federal district court in San Francisco has decided. However, the consumers’ claims based on Bayer’s statements that the supplements “support heart health” and “support immunity” were dismissed (Gallagher v. Bayer AG, March 10, 2015, Orrick, W.).

Consumers Colleen Gallagher and Ilana Farer filed a putative class action suit against Bayer, alleging that Bayer false and deceptively misrepresented the health benefits of several varieties of its One A Day brand multivitamins in violation of various state consumer protection statutes. The consumers contended that Bayer represented in marketing and labeling that the vitamin supplements supported “heart health,” “immunity,” and “physical energy.” The defendants moved to dismiss the complaint.

Lack of substantiation. The plaintiffs alleged that Bayer’s use of “supports physical energy” with respect to the supplements was false and misleading because numerous scientific studies confirmed that the vitamin supplements did not affect the energy levels of typical Americans. Bayer’s contention that the claims should be dismissed because studies showed that vitamins and nutrients in Bayer supplements actually support physical energy or were inconclusive was rejected. The court noted that the studies cited by Bayer discussed the potential benefit from taking specific vitamins for individuals who suffer from nutritional deficit and did not prove the benefit of supplements for increased physical energy. Thus, the plaintiffs adequately alleged falsity of the “supports physical energy” claim to proceed at the current stage of the litigation.

Standing. The court also determined that the plaintiffs had standing to pursue claims for products they did not purchase. Although the plaintiffs only purchased one of the 20 varieties of multivitamins included in the suit, they could sue on behalf of individuals who purchased other varieties of the supplements. The plaintiffs alleged that Bayer made each of the three statements based on the presence of specifically identified vitamins and nutrients that were included in each of the supplements, and each supplement provided an essentially identical combination of relevant vitamins and minerals. These allegations were adequate to show that the type of claim and consumer injury were substantially similar between the purchased and unpurchased products, the court found.

Preemption. However, the plaintiffs’ state law claims based on the argument that Bayer’s statements that the supplements “support heart health” and ‘support immunity” were illegal disease claims were preempted by the Food, Drug and Cosmetic Act (FDCA). Under the FDCA, state laws imposing labeling requirements not identical to Food and Drug Administration (FDA) mandates were preempted. The plaintiffs argued that Bayer statements represented that on its packaging and advertising that its supplements prevented, mitigated, or treated cardiovascular disease. Bayer contended that the three challenged statements were structure/function claims that were expressly approved by the FDA.

According to the court, the plaintiffs did not identify any specific language on the packaging, websites, or advertisements of the supplements that would link the “supports heart health” and “supports immunity” language to the treatment or prevention of a disease. Without facts showing that the language has been linked to the treatment or prevention of cardiovascular disease, the statements are structure/function claims preempted by the FDCA and should be dismissed, the court concluded.

The case is No. 3:14-cv-04601.

Attorneys: Laurence D. King (Kaplan Fox & Kilsheimer LLP) for Colleen Gallagher and Ilana Farar. Ryan M. Sandrock (Sidley Austin, LLP) for Bayer AG, Bayer Corp. and Bayer HealthCare LLC.

Companies: Bayer AG; Bayer Corp.; Bayer HealthCare LLC

Cases: Advertising CaliforniaNews