Class Calling P&G’s Align ‘Snake Oil’ Certified

     CINCINNATI (CN) – A false advertising class action against Procter & Gamble for one of their dietary supplements, which plaintiffs say was fraudulently marketed as curing sour stomachs, can now proceed, after the Sixth Circuit upheld class certification on Thursday.
     A three-judge panel found that plaintiffs in the lawsuit had provided enough evidence – and had promised to provide more, even scientific clinical studies, if necessary – to at least make the argument that the supplement Align was useless.
     Procter & Gamble had been accused of pushing Align with false promises that the probiotic bacteria Bifantis in the supplement could “bring peace to your digestive system,” according to the original complaint. The plaintiffs alternately dubbed Align “snake oil” and “nothing more than a sugared capsule filled with naturally occurring bacteria.”
     The 2010 suit also slammed three studies relied upon by the Procter & Gamble, one of which it funded directly, as flawed and indeterminate as to the benefits of the bacteria.
     “Procter & Gamble’s advertising and marketing campaign is designed to cause consumers to buy Align as a result of this deceptive message,” the complaint says, “and Procter & Gamble has succeeded.”
     Align, a supplement launched in 2009 that contains the patented probiotic strain, has been marketed as an over-the-counter dietary supplement that can be taken by itself rather than other probiotics that need to be added to yogurt or other foods. It retails for as much as $40. Only a handful of probiotics have received approval by the Food and Drug Administration for over-the-counter use.
     P&G had argued that the plaintiff classes failed to prove they all suffered the same injuries from using Align, and that the evidence presented had been anecdotal. But the panel found that plaintiffs did not yet have to prove common injuries at this stage of the suit – only a common contention.
     The opinion, penned by Circuit Judge Karen Nelson Moore, found that a lower court had not abused its discretion in granting class certification and turned to a gender discrimination class action lawsuit that had been certified before the U.S. Supreme Court for her reasoning.
     She contrasted that case, in which plaintiffs accused Wal-Mart of institutionalized gender discrimination at the company, noting that the class had not proven common discrimination among all Wal-Mart managers.
     “Here, in contrast, plaintiffs have identified a common question – whether Align is ‘snake oil’ and thus does not yield benefits to anyone,” Moore wrote in the 40-page opinion. “If true [that allegation] will make P&G liable to the entire class.”
     Moore also said if the underlying question is proven, it doesn’t matter that some plaintiffs kept buying Align thinking it had worked for them, which was another of P&G’s contentions.
     “If Align does not provide any [digestive health] benefits, then every class member was injured in the sense that he or she spent money on a product that does not work as advertised,” Moore wrote.
     The plaintiff classes consist of consumers from North Carolina, Florida, California, Illinois, and New Hampshire. Moore upheld the certifications in all five states, writing that at a minimum, consumers saw the marketing on Align’s packaging which was uniform across states.
     P&G had also hoped to have the case tossed on grounds that damages sought were not consistent because Align ostensibly worked for some consumers. Moore did not buy that, however, writing that what the plaintiffs sought – full refunds for each class member – satisfied current legal precedents and was appropriate because “there is no reason to buy Align except for its purported digestive benefits.”
     P&G has fought hard to have the case dismissed for several years. In 2013 it came closest, as a federal judge for the U.S. District Court for Ohio, where the case had been transferred – and P&G is based – trimmed the suit and granted P&G’s request to dismiss three of the state classes.
     But in 2014, the same judge granted certification for all five classes. P&G appealed that ruling, arguing the court abused its discretion, but today Moore handed the company another defeat.
     Despite the success so far, Moore did not express optimism for the plaintiffs’ chances. She said plaintiffs’ expert testimony, which suggested Align could be proven to be useless through double-blind clinical trials, would be heard in court, but issued a warning: “If Align in fact is proven scientifically to work for some individuals, plaintiffs will lose on the merits.”
     In a concurring opinion, Circuit Judge Avern Cohn agreed with Moore’s reasoning for granting certification but had a caveat of his own: Should “plaintiffs’ proofs fail to establish that Align has no digestive health benefits, the case should be dismissed,” he wrote.
     In a dissent, Circuit Judge Deborah Cook said the certification violated recent U.S. Supreme Court precedent in that plaintiffs offered no proof to support their assertion that Align is snake oil, and all the available evidence tends to show the opposite.
     “At this stage plaintiffs must demonstrate that they can disprove Align’s efficacy for every member of this class at one time,” Cook wrote, noting that includes both users with irritable bowl syndrome-the target consumer for the supplement-and healthy consumers who may have still derived benefits from Align.
     “Plaintiffs offer nothing in support of their claim that Align benefits no one,” she wrote. “Instead, they nitpick P&G’s competent evidence, trot out an expert without any opinion as to the supplement’s efficacy, and promise to conduct the definitive trial of Align that accounts for all variables of human physiology.”
     Emailed requests for comment to P&G were not returned. The lawyer representing the plaintiffs could not be immediately reached for comment.

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