SAN DIEGO (Legal Newsline) - Bayer's costs for allegedly including synthetic ingredients in One a Day multivitamins while marketing them as all-natural possibly just went up.
San Diego federal judge Michael Anello on Sept. 16 gave a boost to class action lawyers at Reese LLP, certifying a class of customers while denying Bayer's motion for sanctions.
Bayer now faces either a classes-wide settlement or trial. Anello certified classes of California consumers who purchased certain One a Day bites from March 1, 2020, to May 30, 2023, plus New York consumers from May 31, 2020, to May 30, 2023.
Bayer claims the lead plaintiffs and their lawyers were inadequate to lead a class action.
"However, the Court finds that the complained-of behaviors, such as certain discovery violations, do not rise to a level that suggest Plaintiffs' counsel are inadequate given that counsel has ample experience with consumer class actions and no conflicts with the proposed classes," Anello wrote.
Anello last year rejected Bayer's motion to dismiss the case, which argued plaintiffs should read the ingredients on bottles.
“Bayer respectfully disagrees with the Court’s decision to certify a class in this litigation and plans to appeal the certification," a company spokesperson said.
"The Company also believes the claims in this case to be meritless and will vigorously defend itself against the litigation if it moves forward. Bayer believes that the evidence in this case will show that it acted properly in marketing its One a Day ‘Natural Fruit Bites’ product as no reasonable consumer would be misled by the label.
"Plaintiffs’ own survey expert testified that there is ‘no evidence that any consumers are confused by the word ‘Natural’ on the Bayer label,’ and that the word has ‘no impact whatsoever’ on consumers’ perceptions.’”
Citing precedent from the U.S. Court of Appeals for the Ninth Circuit, Anello rejected Bayer's claims that all curious consumers need to do is read the ingredients list. Anello said that can't be a "shield for liability" in deceptive advertising cases.
"Here, the Ninth Circuit's general prohibition on using an ingredient list to correct a misleading claim applies because Plaintiff sufficiently alleges that the products' labels are deceptive rather than 'ambiguous,'" Anello wrote.
The case makes the argument some of the ingredients are synthetic, like cholecalciferol, niacinamide, pyridoxine hydrochloride and D-biotin, among others.
Anello wrote plaintiff lawyers can show injury after alleging consumers would not have purchased or not paid as much for the multivitamins had they known about artificial ingredients.
Dr. William Ingersoll has proposed a choice-based conjoint survey methodology" to measure the value of an individual product attribute, helping determine a price premium attributable to the all natural claims.
Bayer asked Anello to impose sanctions on plaintiff lawyers for filing a "frivolous" class certification motion and complaint. The plaintiffs also asked for sanctions against Bayer for an alleged abusive pattern of conduct.
"Given that the Court has denied two motions to dismiss in this case and has now granted class certification, the Court finds imposition is not warranted, as this case is not frivolous," Anello wrote.
Bayer's motion for sanctions alleged two named plaintiffs failed to present evidence they ever bought the product or remember what it looked or tasted like. One even claimed they were round, though they are square.
"Ms. (Deborah) Bowling was not deceived either," Bayer's motion for sanctions said.
"Although she claimed she cared about natural vitamins, every vitamin product she ever bought contained synthetic vitamins.
"(Q. Every other product that you’ve taken since [the Natural Fruit Bites], every other vitamin product, has synthetic ingredients, right? A. Right.).
"In fact, the day of the deposition, she was taking a big, turquoise CVS pill that contained not only synthetic vitamins but also three artificial colors. She could not 'remember' why she never shopped for an all-natural product."