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False Advertising in California: “One-A-Day” is False if the Dosage is Two-A-Day

Occasionally, the way a product is branded — its name and trademark — can cause problems with respect to claims of false advertising. For example, we recently wrote about a US Ninth Circuit Court of Appeals case concerning use of the word “diet” on soft drinks. The plaintiffs claimed that the word was misleading because drinking “diet” soft drinks — according to the plaintiffs — will not result in weight-loss. But the court held that use of the word was not false advertising because consumers accept the word “diet” to mean “lower calorie.”

However, in a recent California Court of Appeals case, the court held that the brand “One-A-Day” vitamins was false advertising when the dosage was, in fact, two-a-day, particularly where the dosage information was in the tiniest of print on the back of the bottle. See Brady v. Bayer Corporation, Case No. G053847 (Cal. App. 4th Dist. September 7, 2018). As the court phrased it, the dosage information was “… an ocular challenge even when the bottle is full-sized and held in good light …”

In arriving at its decision, the court analyzed many of the trends with respect to consumer advertising and packaging. The court noted that “common sense” prevails in many cases. For example, courts have rejected any claim of false advertising for “Kellogg’s Froot Loops” because no reasonable consumer would expect actual “fruit” to be contained in the cereal. The court also noted that literal falseness will almost always result in liability. In one case, a manufacturer of laundry detergent was held in violation of false advertising laws for claiming the product had “whitener” when, in fact, it contained no such chemicals.

The court also analyzed cases involving the front and back of packaging. The court noted that, in one case, the front of the package indicated “fruit juices” and showed images of several types of fruit on the front. However, on the back, the “fine print” indicated only one type of fruit juice and that was third on the ingredient list after “sugar” and “high fructose corn syrup.” The court held that to be false advertising. The disclosure on the back of the package did not cure the misleading nature of the front of the package.

Finally, the court noted and discussed cases where the brand name itself was considered misleading given the product being sold. One of the more famous cases involved a very popular energy drink branded as “5-Hour Energy.” In that case — filed here in California — the plaintiffs survived the pleading stage based on the simple claim that the drink did not give consumers five hours of energy. The case was subsequently settled.

Based on the foregoing case law and reasoning, the court concluded that “One-A-Day” brand vitamins was false advertising where the dosage was actually two-a-day. The court held that the small-print dosage information on the back of the bottle did not cure the misleading nature of the brand name.

Contact San Diego Corporate Law

For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard provides a full panoply of legal services for San Diego and California businesses. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard has — for the fourth year in a row — been honored as “Best of the Bar” by the San Diego Business Journal for 2018.

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