Probiotic False Advert Claims Follow Bayer

(CN) - Bayer must face claims that its Phillips' Colon Health Probiotic + Fiber product does not defend against constipation, diarrhea, and gas and bloating, as advertised, a federal judge ruled.

Troy Yuncker and Dino Rikos, of Illinois, filed a putative class action in May 2011, alleging Bayer falsely advertises that its over-the-counter Phillips' Colon Health Probiotic + Fiber product contains "three strains of good bacteria to promote overall digestive health."

The Morristown, N.J.-based manufacturer began marketing the drugs nationwide in October 2008 and June 2009, according to an amended complaint filed in March 2014.

Though Bayer's TV and internet ads, as well as packages, labels, and in-store samples, allegedly say the drugs "help[] defend against occasional: constipation, diarrhea, [and] gas and bloating," based on "scientific evidence," those statements are not true, the plaintiffs claim.

Relying on those ads, Rikos bought the product in California and Illinois several times in 2010, while Yuncker bought it at a Walgreens in Illinois in May 2011, the complaint states.

But the product's ingredient matrix does not provide the digestive or immune system benefits that Bayer claims, the complaint says.

The plaintiffs say the European Food Safety Authority found in July 2009, that no available data shows that consuming lactobacillus gasseri - one of the strains of bacteria contained in Phillips' Colon Health - improves intestinal transit within the normal range.

The agency also allegedly found that consuming the two other strains in Phillips' Colon Health (bifidobacterium bifidum and bifidobacterium longum) does not decrease potentially pathogenic intestinal microorganisms in infants and children aged 0 to 36 months.

The authority further concluded in 2012 that the consumption of the bacteria in Phillips Colon Health has not been shown to defend against pathogenic bacteria, the complaint states.

The plaintiffs assert claims for consumer fraud under New Jersey, California, and Illinois law; breach of implied warranty of merchantability; and unjust enrichment.

They seek to halt the dissemination of the allegedly false and misleading advertising, correct the idea it has created in the minds of consumers, and obtain redress for those who have purchased Phillips' Colon Health.

The pharmaceutical giant moved to dismiss for failure to state a claim on April 30, 2014.

U.S. District Judge Jose Linares dismissed the New Jersey Consumer Fraud Act claims Thursday, finding that "the states where the named plaintiffs purchased Phillips' Colon Health have the most significant relationship to plaintiffs' consumer fraud claims."

Though the unjust enrichment claim survived, the plaintiffs were required to establish privity under Illinois law to support the breach of warranty claims, the unpublished ruling states.

"Not only have plaintiffs failed to do so, but it is clear that cannot do so given their concession that the products at issue were not purchased directly from Bayer," Linares wrote (emphasis in original).

But the court held that the cited scientific studies support the California Consumers Legal Remedies Act and Unfair Competition Law and the Illinois Consumer Fraud Act claims.

"Such scientific studies, accepted as true for purposes of this motion, allow the court to draw the reasonable inference that the combination of the three strains of bacteria contained in Phillips' Colon Health does not deliver the digestive health benefits that Bayer claims it does," Linares wrote. "Whether or not plaintiffs will ultimately be able to prove that Bayer's statements are actually false remains to be seen and is certainly not at issue on a motion to dismiss." (Emphasis in original).

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