Law Review: One A Day vs. ‘Take two gummies daily’
December 3, 2018
Here is an interesting, brand new One A Day vitamin bottle labeling case against Bayer, maker of One A Day vitamins.
The claim in this Fourth District Court of Appeal case out of Orange County is that Bayer's packaging of its "VitaCraves Adult Multivitamin" line of One A Day brand vitamins is unlawfully misleading because the required daily dosage is two gummies to get the recommended daily values.
The trial court and two courts of appeal ruled for Bayer writing that any user would surely read the fine print on the back side of the bottle. The Fourth District heard the case.
The question for the Court was whether the One A Day label on the front of the bottle was a misrepresentation in violation of California's Consumer Legal Remedies Act, which only requires that "members of the public are likely to be deceived."
OTHER INTERESTING CASES
The Court of Appeal looked at other label misrepresentation cases like whether Kellogg's Froot Loops misrepresented it contained any measurable amount of nutritious fruit, and whether a picture of Cap'n Crunch holding a spoonful of berries on a cereal box promises real fruit in the cereal. Froot Loops and Cap'n Crunch won those cases.
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Is it misrepresentation if Mylanta Nighttime Strength pills do not address nighttime heartburn any better than they do in the daytime?
Trader Joe's "soy milk" was challenged as not being milk; however the court ruled for Trader Joe's since the words lactose free and dairy free were prominently noted on the front of the product.
The Court of Appeal ruled the ingredient list on a label should confirm the expectations raised on the front of the bottle, not contradict them. Not all consumers read the fine print on the labels, but many rely on the title, in this case: "One A Day." "An ocular challenge even when the bottle is full-sized and held in good light," as the Court wrote. The back-side directions specify two gummies daily.
The Court went on to note that Bayer's gummies are targeted at more casual consumers than hard-core vitamin users who treat vitamins like medicine, gummy users being less likely to read the backside fine print.
Judgment on the pleadings against Bayer. Not sure I agree.
APPEAL TO U.S. SUPREME COURT
Given the split of authority among courts, it is likely this case will make it to the U.S. Supreme Court. I can tell you right now the decision will be for big business, in this case Bayer.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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