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Court dismisses claims suit on Bayer One-A-Day gummies

Bayer, always under fire, dodges a court case alleging that "One-A-Day" is misleading when the dosage is two.

A federal district court in Arkansas recently dismissed a charge leveled against healthcare products giant Bayer. The suit alleged that Bayer’s One-A-Day brand name is deceptive for use on its gummy vitamins, considering the fact that the dosage calls for two gummies a day.

The court dismissed the case, pointing out that the dosage is stated three times on the label, and that no reasonable consumer, including the plaintiff himself, Brad Howard, would plausibly be deceived or misled by the brand name. The court’s case document is judicious enough to point out that “Howard’s claim is not silly.” However, it suggests, a vitamin is different than a food or beverage, and a consumer is likely to look at more than just the brand name when considering to purchase.

NBJ Bottom Line

Howard sued Bayer under the Arkansas Deceptive Trade Practices Act, one of 50 “little FTC” acts designed to protect consumers at the state level.

Read: there are many ways for a company to be sued.

Not only can the FTC target a brand owner for deceptively labeled products, State Attorneys General have similar authority to take action on faulty claims. Bayer has already been dinged by a “little FTC” act, forking over $1.2 million to the state of Oregon in October 2010 for alleged prostate cancer curative claims on its One-A-Day Men’s multivitamins.

Beyond FTC and State Attorneys General, the National Advertising Division (NAD) of the Better Business Bureau (BBB) holds sway. For a nominal fee, one company can file a complaint with NAD about another company’s claims. Ignore NAD’s warning, and the case is handed over to the FTC. The Commission sued six companies in 2010 for that very reason.

And some states take it a step further. California’s Consumer Remedies Act essentially offers every Californian a “little FTC” act with which to battle company claims. Look back to April 2011 and (guess who) Bayer is slapped with a consumer class action suit over health claims made on its Phillips Probiotics Colon Health products.

Consumers are more empowered than ever, which is a good thing. Some people are frivolous and greedy, which is a bad thing. Once again, there are many ways to be sued. Be careful. Make quiet claims. Get a good lawyer.

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