Bayer One A Day Vitamin Marketing Class Action Lawsuit Trimmed

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Last week, a federal judge dismissed claims in the class action lawsuit alleging Bayer Corp. and its affiliates used false claims in advertising for Bayer One A Day Multivitamins.

The Bayer One A Day class action lawsuit was filed in California federal court in October of last year. In it, lead plaintiffs claimed, “Bayer commands a premium price for its One A Day multivitamins by distinguishing them from regular multivitamins with targeted multivitamins aimed at various segments of the population based on age, gender, and even health concerns.”

However, the false advertising class action lawsuit alleges, “State and federal dietary guidelines and nutrition science experts all agree that (a) nutrient needs should be met primarily by consuming foods, (b) most Americans are not vitamin deficient, and they consume adequate amounts of vitamins and minerals, and (c) for the most part, only those suffering from vitamin or mineral deficiencies (usually due to diet or health issues) benefit from vitamin supplements.” Further, “[t]hese authorities also agree that multivitamin supplements are not effective for preventing or treating diseases,” according to the Bayer One A Day class action lawsuit.

Last week, U.S. District Court Judge William H. Orrick granted, in part, a motion from Bayer to dismiss the plaintiffs’ claims that Bayer is making illegal disease claims by using the statements “supports heart health” and “supports immunity” in its marketing of One A Day vitamins, but allowed similar claims about the statement “supports physical energy.”

“Bayer asserts that each of the Statements – supports heart health, immunity, and physical energy – is a structure/function claim explicitly approved by the [Food and Drug Administration (FDA)] and, therefore, that plaintiffs’ causes of action are preempted under the [Federal Food, Drug, and Cosmetic Act (FDCA)],” said the judge in his order dismissing part of the Bayer class action lawsuit.

“[P]reemption only occurs where application of state laws would impose more or inconsistent burdens on manufacturers than the burdens imposed by the FDCA. If a lawsuit asserts that a manufacturer has violated the FDCA … and does not seek to impose additional or contrary burdens to those imposed under the FDCA, the claims raised under state law are not preempted,” the judge explained in his order.

Regarding the “supports heart health” statement, Judge Orrick wrote, “Based on the record before me, plaintiffs’ claims based on the argument that ‘supports heart health’ is an impermissible disease claim are preempted by the FDA guidance suggesting use of ‘supports heart health’ without more is a structure/function claim.” Judge Orrick similarly dismissed the plaintiffs’ claims based on the “supports immunity” statement.

Judge Orrick retained the plaintiffs’ claims based on the “supports physical energy” marketing statements saying, “With respect to the ‘supports physical energy’ Statement, plaintiffs have adequately pleaded that the Statement is false because scientific evidence confirms that the vitamins Bayer asserts help support immunity do “not affect the energy levels of typical Americans,” in his order upholding part of the Bayer One A Day class action lawsuit.

Judge Orrick also indicated he will give the plaintiffs’ leave to amend their false advertising class action lawsuit to address the claims he dismissed.

The plaintiffs are represented by Kaplan Fox & Kilsheimer LLP, as well as the Center for Science in the Public Interest.

The Bayer One A Day Vitamin Deceptive Marketing Class Action Lawsuit is Gallagher v. Bayer AG, et al., Case No. 14‐cv‐04601, in the U.S. District Court for the Northern District of California.

UPDATE: On Nov. 15, 2017, a federal judge granted Class certification in a Bayer One A Day mislabeling class action lawsuit, limiting certification to three state-based Classes.