Bayer Sued for Allegedly False Advertising of Benefits of Philips Colon Health Probiotics Supplements

By Riëtte van Laack –

On Friday April 22, 2011, a customer slapped Bayer HealthCare LLC (“Bayer”) with a class action suit in California federal court accusing Bayer of falsely and deceptively advertising the benefits of its Phillips Probiotics Colon Health (“PPCH”) supplements.  The complaint alleges violation of consumer legal remedies and unfair competition laws, breach of express warranty, and unjust enrichment.  The basis of the complaint appears to be the contention that Bayer has not provided, in its advertising or otherwise, the data upon which its advertising claims are based.

According to the complaint, Bayer asserts in its advertising campaign that PPCH provides unique health benefits including:

• Helps the body produce vitamin K, lactase and other antimicrobial agents;
• Helps protect against diarrhea and other intestinal problems; and
• Supports digestive and immune health.

Plaintiff alleges that these claims are false and misleading because Bayer fails to cite any scientific study to demonstrate the health benefits from consumption of the PPCH products.  Without providing specifics, plaintiff asserts that she has gathered “study upon study that demonstrate[] that probiotics [in amounts similar to those in the PPCH products] fail to provide digestive or immune health benefits.”  However, plaintiff does not reference studies or statements regarding the specific microorganisms present in the PPCH supplements.

Bayer’s offer of a 3-week money back guarantee for its PPCH products carried no weight with plaintiff (if a consumer takes PPCH as part of a balanced diet and healthy lifestyle every day for three weeks and is not completely satisfied, Bayer offers to refund the purchase price).  Plaintiff claims that this money back guarantee is just another ploy to “deceitfully induce a placebo effect on consumers irrespective of any actual probiotic effect.”  But plaintiff was not to be fooled.  She purchased a bottle of PPCH on April 7, 2011 and filed the complaint on April 22, 2011 – in time to avoid any possible placebo effect.