"One a Day" plausibly misleads when consumers need to take more than one to get full benefit

Newman v. Bayer Corp., --- F.Supp.3d ----, 2023 WL 6318523, No. 22-CV-7087 (KMK) (S.D.N.Y. Sept. 28, 2023)

Another day, another “One A Day” claim where the bottle instructs users that, you guessed it, a daily serving is more than one gummy. NY GBL § 349 and § 350 claims survived. (Does this cause any problems for the One A Day trademark?)

One a Day gummies that aren't one a day

The court found consumer-oriented conduct and price premium injury sufficiently alleged. The labels were also plausibly materially misleading. Defendants relied on two cases rejecting similar theories, including one that was vacated by the Ninth Circuit in light of California cases more favorable to plaintiffs (Goldman v. Bayer AG, No. 17-CV-647, 2017 WL 3168525 (N.D. Cal. July 26, 2017), vacated and remanded, 742 F. App’x 325 (9th Cir. 2018); and Howard v. Bayer Corp., No. 10-CV-1662, 2011 WL 13224118 (E.D. Ark. July 22, 2011)). But, under Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), it was plausible that “there is little chance that clarification or context on the reverse of the package will suffice to overcome a deception claim (especially at the motion-to-dismiss stage).”

The product “communicat[es] by the large, bold-faced claims” to a reasonable consumer that “One A Day,” or specifically, to a reasonable consumer purchasing a bottle of supplements, one supplement a day, is needed to receive its benefits. It was also relevant, though not dispositive, that other supplements sold under the same brand were, in fact, one per day. “Common sense would dictate that a reasonable consumer, choosing between supplement brands or products, may choose a product within a line that provides the ‘full nutritional value’ in a single gummy, as Defendants indeed market with their other, non-chewable versions within the same line.” The interpretation “one serving a day,” by contrast, was “a stretch.” “An apple a day keeps the doctor away” means one apple, not one serving.

Even though one would need to look at the ingredient label to know exactly what the nutrients were, the issue was whether a consumer would believe she’d get the full nutritional benefit—whatever that was—with one gummy a day.

Breach of warranty claims survived. But scienter was a problem for fraud. The plaintiff quoted a California state court (linked above) “discussing One A Day’s 75-year work ‘convincing the public they could be trusted to divine its vitamin needs.’” “[T]he Court is skeptical of Plaintiff’s use of another court’s musings upon Defendants’ business model as substantial allegations of Defendants’ scienter,” and there weren’t supporting allegations about the market share of the defendants and industry practices.