Authored By: Alicia Lammers
Most people are familiar with Bayer’s One A Day slogan. The company advertises their vitamin as a supplement that can be taken once a day to get all the nutrients you need.
Recently a group of plaintiffs sued Bayer for the mislabeling of one of their packaged gummie vitamins. It turns out that the vitamin gummie, One A Day’s VitaCraves® adult multivamin gummies, should be taken twice a day instead of once. Reportedly, the packaging on the back of the vitamins did have a recommendation in fine print that it should be taken twice rather than once a day.
According to Top Class Actions article, Bayer unsuccessfully argued that the same standard that applies to Froot Loops cereal should also apply to their vitamins. The company tried to argue that a common-sense theme should be applied to their product.
The appellate court disagreed, saying that their product was geared towards the average consumer who would normally not look into the fine print when the label says one a day.
The Court of Appeal provided an analytical framework for analyzing mislabeling claims at the pleading stage. According to the Court, such claims touch on four discrete themes. Those themes are:
- Common sense theme. If a conclusive statement is not misleading based on “common sense” For example, a claim that Kellogg’s Froot Loops (Froot, not fruit) contained real fruit fails common sense, and so that case was properly dismissed.
- Literal truth/literal falsity. The Court of Appeal recognized that a claim based on a literally false statement will likely survive a pleadings challenge. On the other hand, a literally true statement may protect against a mislabeling claim, but only if that truth is meaningful in context.
- Front-back dichotomy. If the packaging has different labeling on each side that could be contradictory. If fine print on the back contradicts a definitive statement on the front, a mislabeling claim will likely survive dismissal on the pleadings.
- Brand names that are misleading. For example, if the brand name includes the word “organic” but one of its products is not, the brand name may be deceptive.
The plaintiffs argued that all four themes, were used in Bayer’s labeling of their gummie vitamins.
To learn more about this case of mislabeling, click here to read Robert Guite and Jay Ramsey’s article.
Photo Credit: Nelli Syrotynska