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Gallagher v. Bayer Ag

United States District Court, N.D. California

March 10, 2015

COLLEEN GALLAGHER, et al., Plaintiffs,
v.
BAYER AG, et al., Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS Re: Dkt. No. 39

WILLIAM H. ORRICK, District Judge.

INTRODUCTION

Plaintiffs sue Bayer AG and related entities (Bayer) for violation of various consumer protection statutes under California, Florida, and New York law because Bayer falsely and deceptively misrepresents the health benefits of 20 varieties of its One A Day multivitamin/multimineral supplements (Supplements). See Amended Class Action Complaint (ACAC) [Docket No. 36] ¶ 1. Plaintiffs challenge three statements made by Bayer on each of the Supplements at issue: that the Supplements promote or support (i) "heart health"; (ii) "immunity"; and (iii) "physical energy." Id. ¶ 6 (Statements). As the ACAC is currently pleaded, claims regarding "heart health" and "immunity" are preempted as "structure/function claims" expressly approved by the FDA. Bayer's motion to dismiss regarding those issues is GRANTED with leave to amend, and the remainder of its motion is DENIED.

BACKGROUND

I assume the truth of the allegations in the ACAC. Plaintiffs contend that the three Statements are made in the same manner on each of the twenty varieties of the Supplements and that all of the Statements are based on the same 11 vitamins and minerals found in every One A Day product. Id. ¶¶ 7, 29. Plaintiffs assert that despite the different varieties of One a Day products, the Supplements are "essentially the same product." Id. ¶ 5.

Plaintiffs challenge Bayer's representation that its Supplements "support heart health" by asserting that:

• by making that Statement, Bayer is representing that its Supplements can prevent, mitigate, or treat "cardio vascular disease";
• those claims are false and deceptive;
• the Statement is based on Bayer's products containing vitamins B6, B12, C, E and folic acid (vitamin B9);
• studies have shown that supplements with these vitamins do not prevent heart disease;
• Bayer makes these deceptive blood pressure and heart health Statements for at least 10 of its Supplements, on its product packaging, Bayer's website, and in print and television advertisements;
• plaintiffs and reasonable consumers interpret Bayer's heart health Statements to mean that the Supplements will prevent or ameliorate heart disease, which they do not do;

Id. ¶¶ 31-43.

With respect to "immunity" plaintiffs contend that:

• Bayer states that many of its Supplements "support immunity";
• plaintiffs and reasonable consumers interpret that claim to mean that taking Supplements will help them get sick less often and that these products will help prevent disease;
• the immunity Statement is false and deceptive;
• Bayer makes its immunity Statement based in its Supplements containing vitamins A, C, and E, selenium, iron, beta-carotene, and zinc;
• the Statement is false and deceptive because studies confirm that supplementation with these vitamins and minerals has no effect on the immunity of adults in developed countries like the United States;
• the Statement is made for at least 15 of its Supplements on product packaging, Bayer's website, and in print and television advertisements.

Id. ¶¶ 44-55.

With respect to "physical energy" plaintiffs allege that:

• Bayer states many of its Supplements help "support physical energy";
• plaintiffs and reasonable consumers interpret this Statement to mean they will feel more energetic simply ...

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