SAN FRANCISCO (Legal Newsline) - Judge Phyllis J. Hamilton recently oversaw a hearing on Bayer's motion to dismiss a class action lawsuit that claims the company misrepresented the number of multivitamins that are contained in bottles of One A Day VitaCraves chewable vitamin supplements.

The hearing was held July 12 at the U.S. District Court for the Northern District of California.

Plaintiff Daniel Goldman filed a response to the motion to dismiss the class action suit, claiming that the companies violate the consumer protection laws of several states with the misinformation of the number of days’ worth of vitamins contained in the bottles.

Goldman had filed the initial class action complaint in February against the companies.

In its motion to dismiss, Bayer contends that Goldman’s claims are baseless.

According to Goldman’s complaint, Bayer markets and sells numerous multivitamin products under the One A Day brand. It also displays the number of vitamins contained in each bottle or box prominently on the bottom right corner of the front label.

The VitaCraves, adult multivitamin supplements in a chewable, fruit-flavored gummy form, are marketed in at least 10 different types.

Goldman purchased One A Day VitaCraves in December at two outlets, one in New York and another in California. He claims he relied on the labels, which led him to believe he was receiving twice as many days’ supply of vitamins than the bottles actually contained.

In the complaint, Goldman maintains that most consumers purchasing a bottle of VitaCraves would understand they should take one each day. As a result, each bottle would contain the number of days’ worth of vitamins equal to the number of gummies in each bottle.

However, that is not the case. Each product in the One A Day VitaCraves line requires the consumer to take two gummies per day, not just one, to get a full serving.

As a result, consumers are only receiving half the supply of gummies that they would likely expect from the One A Day brand, the plaintiff claims. While a bottle containing 70 gummies would be expected to last 70 days, it actually is only a 35-day supply, he says.

In the motion to dismiss, Bayer argued that the “California statutory count fail to state a claim.”  

Citing Williams v. Gerber Products Co., Goldman’s objection to Bayer’s motion to dismiss noted that courts and others in the U.S. Court of Appeals for the Ninth Circuit routinely deny motions to dismiss in light of Williams

“Despite the overwhelming body of case law showing that factual issues should not be decided on a motion to dismiss, defendants cite several cases that represent the rare situation where it is possible to conclude as a matter of law at the pleading stage that no reasonable consumer could be misled by the advertising in question,” the response noted.

“But these cases are simply fringe cases where it was manifestly and objectively impossible for the representation to be deceptive.”

The defendants also cited two cases – Brady v. Bayer AG and Howard v. Bayer Corp., which Goldman’s objection deemed had been incorrectly decided.

Both the Brady and Howard orders held that no reasonable consumer could be misled by the labels at issue here because “a reasonable consumer of any medicine or medicine-like substance such as vitamins would not stop with the brand name,” and “there are no allegations of misrepresentations by defendant other than the brand name.”

Goldman is represented by Wolf Haldenstein Adler Freeman & Herz LLP.

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