Dannon settles Activia claims with 39 states

Jessica M. Karmasek Dec. 15, 2010, 12:00pm


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Attorney General Darrell McGraw and 38 other state attorneys general filed settlements on Wednesday with The Dannon Company over its Activia yogurts and DanActive dairy drinks.

The Federal Trade Commission also announced it filed a settlement with Dannon on Wednesday. The FTC and the attorneys general worked in cooperation on the investigation.

Under the multi-state settlement, Dannon will pay $21 million to the 39 states to settle allegations that Dannon made unsubstantiated and unlawful marketing claims concerning the covered products.

The $21 million payment is the largest payment to date in a multi-state settlement with a food producer, McGraw's office noted.

McGraw's lawsuit alleges that Dannon made unlawful claims in advertising, marketing, packaging and selling Activia yogurts and DanActive dairy drinks, including claims that were not substantiated by competent and reliable scientific evidence at the time the claims were made.

"Consumers should be cautious when relying upon representations made regarding the nutritional value of the food they purchase," McGraw said in a statement.

"But it is difficult for consumers to know whether those representations are supported by scientific evidence. This settlement holds Dannon accountable for misleading consumers."

Dannon represented that Activia, which is sold throughout the United States, helped to regulate a person's digestive system based largely on the presence of one ingredient, a bacterial strain with purported probiotic benefits that Dannon trademarked under the name Bifidus Regularis.

The attorneys general allege that Dannon represented that Activia improved intestinal transit time when consumed one serving per day for two weeks. However, the majority of studies demonstrated a benefit only for individuals who consumed three servings per day for two weeks. The attorneys general also allege that Dannon made other unsubstantiated and unlawful claims about Activia's benefits.

In addition to Activia, Dannon also produces and distributes a dairy drink called DanActive.

The company allegedly represented that DanActive provided consumers with "immunity" and cold and flu prevention benefits.

The attorneys general allege that those claims are unlawful and that Dannon lacked adequate substantiation to support those claims.

As with Activia, Dannon's advertising and marketing emphasized that DanActive contains a probiotic bacterial strain. In DanActive's case, Dannon trademarked the bacterial strain under the "fanciful" name, L. casei Immunitas.

According to McGraw's office, the settlement terms limit the claims that Dannon can make regarding the covered products.

Specifically, Dannon may not represent that the covered products can prevent, treat, cure or mitigate disease.

Additionally, Dannon must possess competent and reliable scientific evidence to support otherwise permissible claims about the health benefits, performance, efficacy or safety of its probiotic food products.

The 38 states are: Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Tennessee, Vermont, Washington, Wisconsin and Hawaii.

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