California Appellate Panel Not Amused That ‘One A Day’ Vitamins Require Two

(California Court of Appeal photograph)

A California Court of Appeal today reversed an Orange County Superior Court judge’s ruling that blocked a class-action lawsuit against Bayer AG for allegedly violating state consumer prohibitions on misleading packaging for the company’s One A Day Gummies, a vitamin supplement.

In its 28-page ruling, a three-justice panel—William Bedsworth, Kathleen O’Leary and Richard Aronson—reasoned that the front of the bottle’s label indicates in sizeable font that the product is to be taken “One A Day,” but in “nano type’ print on the backside directs consumers to “Chew two Gummies daily.”

“One A Day has spent 75 years convincing the public they could be trusted to divine its vitamin needs,” Bedsworth, arguably the most eloquent and entertaining appellate opinion writer in California, wrote in the unanimous decision. “Most of the California consumers to whom One A Day sells have spent literally their entire lives listening to One A Day tell them, essentially, ‘Trust us. We know what you need. You will never know as much about vitamins as we do, but you can rely on us. Take one of our tablets every day and you won’t need any other supplements’ . . . But now Bayer wants us to conclude that trust is not part of One A Day’s success . . . We have been unable to reach that point.”

The panel noted the existence of two federal district courts have reached a different decision, but argue “both [of those] cases are based on what we think is an untenable proposition: that the market for vitamins is undifferentiated; that they hypothetical ‘reasonable consumer’ would, as a matter of law, examine the makeup of a daily vitamin supplement; that such a consumer would not rely upon the expertise of pharmacologists and doctors but would instead analyze the various concentrations of vitamins and minerals in each brand and draw a personal conclusion about which ingredients he/she need in a daily vitamin supplement. We find nothing in law or experience to support that conclusion.”

They also observed but didn’t believe it relevant in this case that the law favors defendant product makers if a misleading label tramples common sense. For example, the panel pointed out that, “Kellogg’s Froot Loops—note ‘froot,’ not even ‘fruit’—contains any measurable amount of actual, nutritious fruit is an idea not to be taken seriously.”

Bedsworth

It didn’t help Bayer’s legal cause either that the front label implies a bottle contains a 100-day supply of gummies when the fine print on the back label “whittles that figure down to 50,” according to the justices.

Their ruling ordered the case back to a superior court room in Santa Ana where the dispute can proceed to the next stage.

R. Scott Moxley’s award-winning investigative journalism has touched nerves for two decades. An angry congressman threatened to break Moxley’s knee caps. A dirty sheriff promised his critical reporting was irrelevant and then landed in prison. The U.S. House of Representatives debated his work. Federal prosecutors credited his stories for the arrest of a doctor who sold fake medicine to dying patients. Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.

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