Brady v. Bayer Corp., G053847, 2018 WL 4275356, ---
Cal.Rptr.3d ---- (Ct. App. Sept. 7, 2018)
Judge Bedsworth was not pulling any punches in this opinion.
I’ll probably quote too much but outraged rhetoric can be fun. To summarize:
[W]hen consumers find a reputable
company offering them vitamins – a company with 75 years of brand recognition,
now owned by an international pharmaceutical company respected all over the
world – they can be expected to adhere to that company’s advice. And when that
company suggests, as it has with its products since 1949, that one vitamin pill
a day is sufficient, it cannot then rely upon individual consumers reading the
small – indeed miniscule – print on the back of its label to learn that instead
of ONE A DAY, they should be taking two.
There are two federal district court decisions that hold to
the contrary, but they don’t care as much about consumers as California courts
do. I mean, they accepted “an untenable
proposition: that the market for vitamins is undifferentiated; that the
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 needed in a daily vitamin supplement.”
Despite the One A Day brand name, “Vitacraves Adult
Multivitamin” gummies require a daily dosage of two gummies to get the
recommended daily values; the plaintiff thus brought the usual California
claims. Here’s the bottle:
“While we cannot provide photos large enough to enable the reader to make it out, the line above the words ‘Supplement Facts’ (the listing of vitamins and minerals provided by each gummie) says – in the smallest lettering on the bottle, an ocular challenge even when the bottle is full-sized and held in good light – ‘Directions: Adults and children 4 years of age and above. Chew two gummies daily.’” That disclosure wasn’t enough to grant (the state law equivalent of) Bayer’s motion to dismiss.
The factual problem with Bayer’s reasonable consumer
argument was that it was reasonable to conclude that consumers rely on “the
expertise of One A Day.” One A Day’s marketing tells consumers “You will never
know as much about vitamins as we do, but you can rely on us,” and that may
well be true—except for the idea that “one a day” will provide the optimum amounts. “And it appears the consumers of California
have concluded that One A Day is a company they can trust: You don’t hang
around for 75 years if people don’t buy your product.” But Bayer was arguing that reasonable
consumers don’t trust it, but instead carefully read and analyze the amounts
shown on the labels.
Even if the court were willing to buy that argument—and it
was skeptical—it could not do so on a demurrer/California equivalent of
12(b)(6). “Not all reasonable vitamin buyers can be said to be alike as a
matter of law…. [O]ther reasonable consumers will consider the daily dosages
recommended by Bayer and the FDA to be just fine – they might even consider
those numbers a safe way to avoid against any danger of ingesting too much –
and will rely upon the name they have come to trust.” As a matter of common
sense, “[i]f the label prominently displays the words ‘One A Day’ there is an
implication that the daily intake should be one per day.” In context, that statement
was literally false.
Sometimes the back of the package can help a defendant avoid
a falsity claim, but not here. Williams v. Gerber Prods. Co. (9th Cir. 2008)
552 F.3d 934, offered an “exceptionally perceptive” view of California law,
reasoning that ingredient lists on the back can confirm material implied
representations on the front, but can’t lawfully contradict them. “[B]rand
names by themselves can be misleading in the context of the product being
marketed. That’s not surprising given that … marketing theory emphasizes the
use of descriptive brand names” that require little thought on consumers’ part
and little demand for explanation on producers’.
Bayer argued that consumers would have to look at the back
of the bottle because that was the only place to learn the serving side, the vitamins
at issue, or the amount in each gummy. But the product wasn’t called
Gazorninplat Gummies or Every Day Gummies. “The front label fairly shouts that
one per day will be sufficient.” Bayer’s
idea that a reasonable consumer would ascertain precise amounts [and make the
requisite calculations] couldn’t be accepted as a matter of law. It wouldn’t be “wishful thinking” for a
reasonable consumer to think that, in this day and age, a full day’s supply of
vitamins could come in one gummy. Perhaps
the very sophisticated—judges and lawyers, for example—would do so, but “other
consumers – knowing they have very little scientific background – would rely
upon the representation of a known brand with 70 years of goodwill and
credibility behind it. We think it likely they would consider that known brand
– presumed to be the employer of doctors, biologists, and pharmacologists – to
be a better judge of what vitamins and minerals should be taken than they are.” It was safe to assume that the market for
vitamins was at least heterogenous in this regard. And the very name of One A
Day was Bayer’s invitation for consumers to outsource their decisions about
which vitamins and how much to take.
Bayer didn’t seem to target sophisticated consumers:
Not only are two different kinds of
sugars (glucose syrup and sucrose) listed as the most prominent ingredients,
but each gummie – depending upon flavor – contains one of three kinds of
artificial dye. That is not the sort of ingredient list that is likely to
appeal to skeptical consumers scrutinizing labels in a health food market.
These are mass-market products.
Nothing on the front of the label revoked the implicit
misrepresentation—the court imagined, for example, a front label stating: “One
A Day Brand Gummies: Get your classic one a day by chewing just two gummies.”
The court refused to assume that “the illegible little dot off to the bottom of
‘One A Day’ on the label – the ‘®’” was sufficient, as a matter of law, to warn
consumers that “One A Day” didn’t mean what it said; “[e]ven sophisticated
consumers who might recognize the trademark symbol as indicating a brand name
qua brand name still might take the brand name as indicating a promise about
the product’s content,” as with a brand using “Organics” in its name.
Similar reasoning rescued the warranty claim; the front of
the bottle implied a warranty that its contents were fit to last 100 days.
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