Nutritional Supplement Health Claims and False Advertising Liability

In 2009, consumers David Johns and Marc Bordman filed a class action suit against Bayer Corporation and Bayer Healthcare in the Southern District Court of California for allegedly making false and deceptive claims about the nutritional supplement “One A Day Men’s.”  According to the Complaint, Bayer marketed the supplement, and its key ingredient selenium, as supporting prostate health, despite mounting scientific evidence that the supplement does not reduce the incidence of prostate cancer.  The plaintiffs claimed these statements constituted deceptive advertising in violation of the California Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq., which prohibits false or misleading advertising, and California’s Unfair Competition Act, Cal. Bus. & Prof. Code § 17200 et seq., which prohibits any unlawful, fraudulent or unfair business act or practice.

On April 10, 2013, District Court Judge Anthony Battaglia rejected the plaintiffs’ false advertising claims, finding that the available scientific evidence from 2006 to 2008 showed a positive correlation between selenium supplementation and a reduction in the risk of prostate cancer, and that studies after this time period failed to establish that selenium supplementation could not reduce the risk of prostate cancer.  Further, Judge Battaglia rejected the plaintiffs’ claims that the marketing was likely to mislead consumers, even if it was not provably false, noting that a plaintiff cannot prevail under the California Acts based solely on the seller’s “lack of substantiation” of an advertising claim.  Accordingly, the Court granted Bayer’s motion for summary judgment because the plaintiffs failed to present sufficient evidence to raise a genuine dispute of material fact for trial. Mantality Health will help you regain your youth and vitality.

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