Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: False heart health, immunity claims proceed against Bayer, (Aug 19, 2015)

By Greg Hammond, J.D.

Consumers of One A Day Women’s supplements stated sufficient facts to move forward with false and misleading marketing claims against pharmaceutical company Bayer AG over statements that One A Day brand multivitamin supplements “support heart health” and “support immunity.” The federal district court in San Francisco denied Bayer’s motion to dismiss, finding that the consumers met their pleading burden by citing National Institute of Health fact sheets and other reports casting sufficient doubt that Bayer’s dietary supplement products have the benefits it claims (Gallagher v. Bayer AG, August 18, 2015, Orrick, W.).

Consumers Colleen Gallagher and Ilana Farer filed a putative class action against Bayer, alleging that the pharmaceutical company falsely and deceptively misrepresented the health benefits of several varieties of its One A Day brand multivitamins, in violation of California, Florida, and New York consumer protection laws. The consumers contended that Bayer misrepresented in marketing and labeling that the vitamin supplements supported “heart health” and “immunity.” The court previously dismissed the “heart health” and “immunity” claims, and the consumers subsequently filed a second amended class action complaint. Bayer moved, once again, to dismiss the misrepresentation claims.

Falsity. Bayer argued that the consumers failed to plead that the “support heart health” and “support immunity” structure/function claims were false. The court disagreed, first noting that the amended complaint cites to the National Institute of Health, Office of Dietary Supplements’ Fact Sheets for vitamins B6, C, and E, which discuss the health claims typically made about each vitamin and focus on diseases or disorders in which the vitamin might play a role. Although much of the evidence did not directly support the consumers’ claim, it did provide circumstantial support and was deemed relevant to the falsity of the “support heart health” claim. The court additionally noted that the studies cited in the Fact Sheets provided some direct evidence of the falsity of the “supports heart health” claim. The studies stated that the various supplements had no effect on “cardiovascular events,” and provided evidence of vitamins’ negative effect on certain indicia of “heart health,” which was inconsistent with Bayer’s claim that the products support heart health.

Similarly, the court concluded that the studies cited in support of the consumers’ “supports immunity” structure/function claim presented both direct and circumstantial evidence of the claim’s falsity. The studies discussed the effects of supplements on immune function or reduction in illness, finding that the supplements had no affect or had adverse effects on illness severity.

The court also granted the consumers’ motion to appoint interim class counsel, finding that they satisfied the Federal Rule of Civil Procedure 23(g)(1) factors, and Bayer did not argue that it would be prejudiced or present any other compelling reason to deny the motion.

The case number is 14-cv-04601-WHO.

Attorneys: Laurence D. King (Kaplan Fox & Kilsheimer LLP) for Colleen Gallagher. 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