Probiotic label claims are bugging Bayer. On April 22, 2011 Bayer’s assertions on its Phillips Probiotics Colon Health products landed the company a class action suit, courtesy of one Diana Stanley and the attorneys that back her. According to its label, Bayer’s probiotic product can 1) help the body produce more vitamin K, lactase and other anti microbial agents, 2) help protect against diarrhea and other intestinal problems, and 3) support digestive and immune health.
In the class-action complaint the plaintiff writes “…as a result of Bayer’s deceptive advertising campaign, Bayer is able to charge a premium for its products….Bayer’s marketing campaign contends that “studies’ have shown that probiotics support the immune system …mislead[ing] the consuming public that its product will in some capacity enhance immune response and health.”
Litigation hot seat
Bayer just can’t seem to escape litigation’s claws. According to attorney Todd Harrison, from Washington D.C.-based law firm Venable LLP, Bayer has made questionable claims in the past and this lawsuit may take a long time to reach a conclusion. In 2010, the company paid $3.3 million to the residents of Oregon, California, and Illinois because of unsubstantiated claims that the company’s One A Day Men’s multivitamins could reduce risk of prostate cancer. Under the settlement terms, Bayer was prohibited from claiming its One A Day products prevented diseases of any kind without solid scientific evidence.
Since probiotics emerged, a conga line of false claims lawsuits have followed. In 2008, a class action lawsuit was filed against Dannon in regards to its claims that its yogurt regulated digestion and boosted the immune system. The case ended in a $35 million settlement. In 2009, the same lawyers that were victorious in the Dannon case turned around and sued General Mills for similar transgressions on behalf of the residents of Florida, taking issue with digestive claims made on Yoplait’s Yo-Plus products. In 2009, the FDA gave Master Supplements 48 hours to strike its assertion that its product could “mitigate, prevent, treat, or cure the H1N1 Flu Virus in people.”
Overall, probiotics companies seem to be walking targets if they imply their products do anything remotely beneficial without backing it up with science. The public deserves truthful advertising and companies should be held accountable, as ambulance chasing lawyers seem to be the only ones benefiting from these rampant cases. Harrison suggests that such claims suits are more often the product of money-hungry attorneys rather than angry consumers.
In the past, class-action suits were typically brought to bear on manufacturers only if after adverse events. Today, more and more individuals are suing companies on behalf of entire states for ineffectual claims and jargon inducing the placebo effect. Consumers often never see the money from these settlements, which can amount to over 700 times what the average American makes in one year. Still, companies are forced to curtail their outlandish assertions and pursue more scientific testing. In the end, though, better science benefits consumers and can assist in future product development.