Bayer One A Day Class Action Gets Three Classes Certified

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A federal judge has granted Class certification in a Bayer One A Day mislabeling class action lawsuit, limiting certification to three state-based Classes.

In an order filed Wednesday, U.S. District Judge William H. Orrick granted certification for three statewide Classes to be represented by plaintiffs Ilana Farar, Andrea Lopez and Rosanne Cosgrove. The Classes will represent persons from the plaintiffs’ respective home states of California, Florida and New York.

The three named plaintiffs claim the promotional material for Bayer’s One A Day line of multivitamins makes false promises for benefits related to heart health, immunity, and physical energy.

Judge Orrick declined to certify a nationwide plaintiff Class, however. For Class Members from all 50 states to bring claims under California law would require the plaintiffs to show “significant contacts” between Bayer and the state of California – contacts that the plaintiffs have failed to show, the judge said.

In the same order, Judge Orrick denied Bayer’s motion for summary judgment. Declarations and deposition testimony showed that the plaintiffs would not have bought One A Day supplements were it not for the representations at issue, which the judge determined makes an adequate showing of injury-in-fact.

The judge also rejected Bayer’s argument that expert testimony merely showed a lack of substantiation for the company’s advertising claims, instead of showing conclusively that the claims are false or misleading.

The Bayer One A Day class action lawsuit has been in play since October 2014. Farar filed the action in conjunction with co-plaintiff Colleen Gallagher, alleging Bayer falsely represented the health benefits that consumers could reasonably expect from taking One A Day vitamin supplements.

According to the plaintiffs, Bayer deceptively represents One A Day supplements as supporting heart health, immunity, and physical energy, as on the label for Women’s One A Day Formula. Several varieties of One A Day supplements bear the phrase “support heart health.” Magazine and television ads claim varieties of One A Day VitaCraves support immunity, energy, and mental fitness.

Judge Orrick narrowed the plaintiffs’ claims in March 2015, agreeing with Bayer that some of those claims were preempted by federal law. Bayer successfully argued that the statements “supports heart health” and “supports immunity” are “structure/function” claims that have been explicitly approved by the U.S. Food and Drug Administration, preempting any related state law claims.

The same could not be said for the statement “supports physical energy.” Judge Orrick found the plaintiffs had adequately stated a claim based on that representation using scientific evidence that showed the energy levels of typical Americans are not affected by the vitamins that Bayer says support immunity.

As certified by the court, the three plaintiff Classes will represent all persons in the states of California, Florida and New York who purchased Bayer One A Day supplements within those respective states and during the applicable statutory limitations period.

The plaintiffs are represented by attorneys Laurence D. King, Linda M. Fong and Robert N. Kaplan of Kaplan Fox & Kilsheimer LLP, and by Matthew J. Zevin of Stanley Law Group.

The Bayer One A Day Deceptive Marketing Class Action Lawsuit is Farar, et al. v. Bayer AG, et al., Case No. 3:14-cv-04601-WHO, in the U.S. District Court for the Northern District of California.