"natural" class certified based in part on internal acknowledgement of materiality and potential falsity

Drake v. Bayer Healthcare LLC, 2024 WL 4204921, No. 22-cv-1085-MMA (JLB) (C.D. Cal. Sept. 16, 2024)

Plaintiffs alleged that Bayer falsely advertised One A Day Natural Fruit Bites Multivitamin products as “natural” even though they “contain non-natural, synthetic ingredients.” They brought claims under NY and California law. The court certified plaintiff classes. I’ll just make a few notes.

Materiality: “[P]laintiffs must offer some means of providing materiality and reliance by a reasonable consumer on a classwide basis in order to certify a class.” Here, named plaintiffs’ depositions, Bayer’s internal documents, and a materiality survey were sufficient. Particularly notable: Bayer had internal debate about “natural.” Its senior brand manager wrote that the “Regulatory [department] did not support” the use of the word “natural” on the labels “based on the presence of vitamins (which are synthetic) in the formula.” But Bayer’s vice president of marketing mentioned that she “would keep [the word “natural”] to test ...” because “[c]onsumers loved those words ...” This was enough to support, for purposes of certification, the claims that a reasonable consumer would attach importance to “natural” and that Bayer knew this. The survey was also fine—the battle of the experts also created a common question of fact. With materiality comes a presumption of reliance.

Bayer also argued that plaintiffs failed to present a workable damages model. But “class wide damages calculations under the CLRA are particularly forgiving[,]” because “California law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.” Plaintiffs’ expert proposed a “choice-based conjoint survey methodology,” which will “measure the value of an individual product attribute, such as a specific understanding of the label” and in turn will help “determine the price premium attributable” to the label claims. That was a well-established method for measuring classwide damages in false advertising product label cases.