Phillips Colon Health Class Action Lawsuit Survives Dismissal

A federal judge upheld the majority of a Bayer probiotic supplement class action lawsuit, only nixing one of four counts because of a choice-of-law issue.

According to the Bayer probiotic class action lawsuit, Phillips Colon Health probiotic supplements do not meet Bayer’s claims using a variety of studies indicating that the bacteria used may not have a significant benefit in improving immune system health. However, a major issue for the judge was not the allegations but rather which state statute violations the plaintiffs alleged in the false advertising class action lawsuit.

The two plaintiffs made purchases in Illinois and California while Bayer is based in New Jersey. However, in the order denying the motion to dismiss the Phillips Colon Health class action lawsuit in part, the judge held that no portion of the transaction took place in New Jersey. Although statutes there offer benefits that others don’t, California and Illinois laws hold precedent. More specifically, “ to apply the NJCFA to the out-of-state consumers in this case would be to ignore the compensatory interests of Illinois and California.”

Other claims held more weight. The judge noted that with a motion to dismiss, the facts must be read in a light most favorable to the plaintiffs. So while there may need to be more links demonstrated at a later stage, the three studies cited in the Phillips Colon Health class action lawsuit were persuasive in plausibly showing the possibility of false advertising by Bayer regarding the benefits of probiotic supplements for consumers’ immune health.

The studies begin in 2009 when the European Food Safety Authority, roughly the European equivalent of the non-pharmaceutical wing of the U.S. Food and Drug Administration, “concluded that the data available do not demonstrate and effect relationship between consumer [one of] the bacteria [in Phillips’ Colon Health] and improvement of intestinal transit within the normal range.”

Similar research regarding the other two bacteria present in the probiotic supplement by the EFSA also reached similar conclusions that there are doubts regarding the efficacy of the products. If true, the products therefore may not “deliver the digestive health benefits that Bayer claims it does,” the judge wrote in the order partially dismissing the Phillips Colon Health class action lawsuit.

The plaintiffs are represented by class action lawyers from Carella Byrne Cecchi Olstein Brody & Agnello PC, Complex Litigation Group LLC, Blood Hurst & O’Reardon LLP and Grant & Eisenhofer PA.

The Phillips Colon Health Probiotic Supplement Class Action Lawsuits are centralized as In re: Bayer Phillips Colon Health Probiotic Sales Practices Litigation, Case No. 2:11-cv-03017, in the U.S. District Court for the District of New Jersey.