SAN FRANCISCO (Legal Newsline) – The U.S. District Court for the Northern District of California has dismissed a lawsuit against Bayer AG alleging the company misrepresented the number of multivitamins that are contained in bottles of One A Day VitaCraves chewable vitamin supplements.

In an order released July 26 Judge Phyllis J. Hamilton, the court ruled that plaintiff Daniel Goldman failed to state a claim for relief and granted Bayer’s motion to dismiss the case.

Goldman, an Oakland, California, resident, claimed that Bayer AG, Bayer Corp. and Bayer Healthcare LLC violated consumer protection laws of several states with the misinformation of the number of days’ worth of vitamins contained in the bottles.

Bayer maintained in its motion to dismiss that Goldman’s claims were without merit.

Goldman markets and sells several products under its well-known 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.

Goldman purchased packages of One A Day VitaCraves in December at two retailers, one in New York and another in California.

In court documents, Goldman stated that 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.

Because of the One A Day branding, Goldman stated that consumers would believe that they should take one vitamin a day. He maintained that each bottle would contain the number of days’ worth of vitamins equal to the number of gummies in each bottle.

The VitaCraves line, however, requires the consumer to take two gummies per day, not just one, to get a full serving.

A bottle containing 70 gummies is a 35-day supply.

Hamilton wrote that the court found no dispute of fact and found further that granting leave to amend the complaint would be futile, as Goldman could not possibly allege facts sufficient to make a plausible showing that a reasonable consumer would be deceived by the label on the One A Day VitaCraves bottle as to the number of gummies included, when that information is accurately stated, or as to the number of servings per bottle, when that number is also accurately stated.

Moreover, the court asked at the hearing what additional facts Goldman could allege if the court dismissed the case with leave to amend, and Goldman’s counsel suggested that he could arrange for consumer surveys to be conducted which he believed would show that a reasonable consumer would be misled into believing that “70 gummies” means “70 servings,” the opinion stated.

“Generally speaking, a survey might be necessary or helpful in proving a claim of deception, and plaintiff is correct that he is not required to prove his claim at this stage,” Hamilton wrote. “However, to state a claim he must still plausibly allege that he was deceived by information that is plainly accurate.”

U.S. District Court for the Northern District of California case No. 17-cv-0647-PJH

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