NEW YORK (Legal Newsline) - The maker of One A Day vitamins is tired of facing lawsuits over the fact that their serving size is actually two.
Bayer filed a motion to dismiss the fourth such lawsuit Dec. 15 in New York federal court, arguing plaintiff Tanysha Newman's case fails to plausibly allege deception. Two federal courts have dismissed similar claims, but a California state appeals court ruling went for the plaintiff.
One a Day is a brand name, not directions, Bayer argues.
"As Plaintiff herself alleges, reasonable consumers of vitamins are interested in and want to receive 'the full nutritional benefit' from the product," the motion to dismiss says.
"But the 'nutritional benefit' information appears only on the Supplement Facts panel, immediately below two statements about the recommended serving size. Anyone interested in knowing 'the full nutritional benefit' would have to review the Supplement Facts panel."
Attorneys at Bursor & Fisher filed the case Aug. 19 over the One A Day gummies. A container of those lasts half as long as a customer would expect, the suit says.
The suit cites the California decision, which finds a problem with the fact "One A Day" is written in much larger letters than the serving size.
"Defendants communicated the same substantive message throughout their advertising and marketing for the supplements, including on the bottle itself and on the front of the supplements’ packaging," the new lawsuit says.
"Each person who purchased the supplements has been exposed to Defendants’ misleading advertising message multiple times. As a result of the express and implied misleading messages conveyed by their marketing campaign, Defendants have caused Plaintiff and Class Members to purchase a product that does not perform as represented.
"Plaintiff and other similarly situated consumers have been harmed in the amount they paid, or overpaid, for the Chewables."