Simon S. Grille— October 22, 2018 In a win for consumers, the California Court of Appeal has revived a class action lawsuit about “One A Day” vitamins that are actually “two a day” vitamins. It turns out that “nano-type print” on the back of the jar says people must take two per day to get the recommended dosage. The court explained that “when [a] 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.” The court’s opinion also offers a user-friendly guide to distinctions that often come up when citizens have turned to a consumer fraud lawyer to bring a class action. Four Themes in Mislabeled Product Cases The new decision in Brady v. Bayer identifies four commonly recurring themes in consumer protection class actions involving false advertising of products. Use your common sense. If a claim contradicts common sense, it can be dismissed without further ado. For example, one court dismissed a mislabeling claim because the notion that a reasonable consumer would think Kellogg’s Froot Loops contain real fruit based on the word “Froot” couldn’t be taken seriously. Labels can’t be literally false. A label that is literally true may protect a manufacturer from a consumer class action, but there’s no protection for a label that is literally false. Vaguer statements—like a corporate statement of the “if-pigs-had-wings” variety—may make a statement literally true and thus immune from claims by even the best class action attorneys. Literal falsity, on the other hand (like a “made-in-the-USA” label when portions of the product were actually made in Taiwan), is unlawfully misleading. What the front giveth, the back cannot take away. Sometimes qualifiers on product packaging can cure otherwise deceptive statements. But when qualifiers on the back of the package directly contradict more prominent, misleading statements on the front, a consumer fraud lawsuit may go forward. What’s in a name? A brand name can itself be misleading. For example, when a product doesn’t perform as its name indicates—like an “auto stabilizer” that doesn’t stabilize—the name itself may be grounds for a consumer class action. The Upshot Considering all of these themes, the Court of Appeal applied common sense to conclude that Bayer’s One A Day vitamin jar is misleading to a reasonable consumer because (1) the product name is literally false; (2) tiny print on the back of the jar directly contradicts the prominent text on the front; and (3) the brand name itself is misleading. The new case is Brady v. Bayer Corporation, 26 Cal. App. 5th 1156, 237 Cal. Rptr. 3d 683 (Cal. Ct. App. 2018). * * * Our Commitment to Excellence Girard Sharp LLP has earned Tier-1 rankings for Mass Tort and Class Action Litigation and has been named in the U.S. News – Best Lawyers “Best Law Firms” list for four consecutive years since 2013. Read about some of our results. We have recovered over a billion dollars for our clients against the world’s largest corporations in cases concerning false advertising and unfair business practices, data breaches, and defective product cases against some of the largest tech companies, including, Apple, Google, LG, Yahoo, and Motorola.
