Won-A-Day, Lose-A-Day

A federal judge killed plaintiff’s claims about heart and immune health, but allowed claims about physical energy to proceed in a class action suit against Bayer.

A federal judge gave a mixed ruling to a class action suit filing false advertising claims against Bayer AG’s labeling under California, New York and Florida law on 20 varieties of the company’s One-A-Day vitamins. The judge killed the plaintiff’s claims about heart and immune health, but allowed claims about physical energy to proceed. Bayer had moved to dismiss the complaint on multiple grounds, including the argument that the claims satisfied federal law, thereby preempting the plaintiffs’ state law claims.
The decision shows the relationship between federal regulations governing supplement advertisements and state laws addressing false advertising, writes attorney Paul Seeley in The National Law Review. “In finding that the FDCA’s preemption provisions apply to DSHEA, the Court suggests that, if the advertising adheres to federal law, then a defendant can limit its liability for ‘illegal’ advertising under state law,” he writes. “That being said, no amount of preemption will allow supplement manufacturers to use false statements to advertise their products: regardless of whether it is a “structure/function” claim or a “disease” claim, the advertising must not be misleading.”
The case shows that the distinction between “structure/function” and “disease” claims is still relevant because it defines what evidence would be required to prove their falsity, according to Seeley, who writes that it greatly magnifies “the importance of finding FDA guidance and regulations regarding advertisements that are similar to the claims at issue.”
Last week, the Natural Products Association (NPA)  filed another “friend of the court” or amicus brief with the U.S. District Court of New Jersey challenging legal action by the Federal Trade Commission (FTC) and Department of Justice (DOJ) against Bayer for its marketing of its Phillips’ Colon Health product.

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