Judge Says Flintstone DHA Supplement Class Action is ‘Neck-and-Neck’

Bayer Healthcare LLC told a California federal judge that he should dismiss a class action lawsuit filed over the benefits of DHA in one of its Flintstones gummy vitamins because there are a lot of studies that support the claim that the brain does benefit from DHA.

There was a hearing over the Flintstone vitamin class action lawsuit on Thursday before U.S. District Judge Haywood Gilliam, in which Bayer’s attorneys explained that all of the studies cited by the plaintiffs begin with the premise that DHA, or docosahexaenoic acid, in a key nutrient that the brain benefits from, which demonstrates that the allegation that Bayer is misleading its customers about the benefits of the vitamin isn’t true.

“If we claimed, ‘Watch your child’s test scores improve,’ then we’d have a different case,” Attorney Eugene Schoon argued. “It’s essential to brain health. That’s all we claim. It can’t be false.”

However, Judge Gilliam said while the studies may include some statements about the benefits of DHA, they also include statements that do not. He explained that in the case of conflicting statements, courts are supposed to make assumptions in favor of the nonmoving party.

Schoon said that in fact “it’s not about what the studies say. They all say DHA is important. Everyone agrees DHA supports brain health.”

According to Stewart Weltman, the plaintiffs attorney, the assertion by Bayer that DHA is an essential nutrient is false, explaining that it is something that the body produces naturally and that it is “superfluous” to take a DHA supplement.

When asked by Judge Gilliam if he agreed with the statement that the relevant studies said that DHA benefits brain function, Weltman said that he did not agree with that statement because “every study said that it was no better than a placebo.

“The amount of DHA in this product that gets to the brain . . . it’s so minimal. It can’t have an effect,” he added.

Judge Gilliam did not say how he was likely to rule on the Flintstone vitamin class action lawsuit, saying that there was about a 50-50 split in similar class action lawsuits in other courts on how to take such studies into account.

“It looks neck and neck, so we will get to plow some new ground,” he said.

Plaintiff Liza Gershman filed the Flintstone vitamin class action lawsuit in December 2014, alleging that Bayer’s Flintstones Healthy Brain Support vitamin that includes Omega-3 DHA, which is supposed to benefit cognitive health is false because the active ingredient is not effective.

According to Bayer’s motion to dismiss the class action lawsuit, which was filed in February, “the studies on which plaintiffs rely . . . contradict their allegations — they actually show improvement in certain brain function endpoints after DHA supplementation.”

In addition, “even if the studies did not show such improvement, the studies do not lend plausibility to plaintiffs’ allegations because Bayer never claimed the product would improve brain function, only that it would support brain health.”

Gershman is represented by Elaine A. Ryan, Patricia N. Syverson, Manfred P. Muecke and Lindsey M. Gomez-Gray of Bonnett Fairbourn Friedman & Balint PC and Stewart M. Weltman and Max A. Stein of Boodell & Domanskis LLC.

Bayer is represented by Ryan M. Sandrock, Eugene A. Schoon and Kara L. McCall of Sidley Austin LLP.

The Flintstone Vitamin Class Action Lawsuit is Liza Gershman v. Bayer Healthcare LLC, Case No. 3:14-cv-05332, in the U.S. District Court for the Northern District of California.