Brady v. Bayer Corp.

• Citation: 237 Cal.Rptr.3d 683,26 Cal.App.5th 1156
• Decision Date: 07 September 2018
• Docket Number: G053847
• Court: California Court of Appeals
• Parties: William BRADY, Plaintiff and Appellant, v. BAYER CORPORATION et al. Defendants and Respondents.

26 Cal.App.5th 1156

237 Cal.Rptr.3d 683

William BRADY, Plaintiff and Appellant,

v.BAYER CORPORATION et al. Defendants and Respondents.

G053847

Court of Appeal, Fourth District, Division 3, California.

Filed September 7, 2018

The Cooper Law Firm, Scott B. Cooper, Irvine, and Samantha Smith for Plaintiff and Appellant.

Sidley Austin, David R. Carpenter, Los Angeles; Jonathan F. Cohn and Joshua J. Fougere for Defendants and Respondents.

Xavier Becerra, Attorney General, Nicklas A. Akers, Assistant Attorney General; Michele Van Gelderen and Hunter Landerholm as Amicus Curiae on behalf of Plaintiff and Appellant.

OPINION

BEDSWORTH, J.

In 1925, Merck Pharmaceuticals sent a letter to Morris Fishbein, chairman of the Journal of the American Medical Association. The letter said, "We have been recently startled by the unexplainable demand on the part of our customers for Sodium Borate C. P. Powder. From our representatives, we have learned that a Dr. Brinkley, of Milford, Kansas, has broadcast recommendations for the use of Merck's Sodium Borate C. P. in obesity

, and we have been literally swamped with orders, not only from the trade, but also from the laity. [¶] We have taken action by notifying our ... customers, as well as our sales staff and such retail druggists as have inquired of us regarding the product, strongly discouraging the use and sale of this material for the above mentioned purpose, as we are cognizant of the dangers involved in the internal administration of Sodium Borate."¹

It's been almost a hundred years since Merck sent that letter—responding to demand created by a charlatan with no formal medical training whose license to practice had been revoked in several states, but who had his own radio station and was making a fortune peddling unfounded remedies to unsuspecting citizens with little or no access to doctors. Since then, Americans have learned to resist such hucksterism and rely not only upon their personal physicians and organizations like the American Medical Association, but upon pharmaceutical companies whose closely regulated research, production, and merchandising have taken the place of expertise the average citizen is unable to develop.

So when consumers find a reputable company offering them vitamins—a company with 75 years of brand recognition, now owned by an international pharmaceutical company respected all over the world—they can be expected to adhere to that company's advice. And when that company suggests, as it has with its products since 1949, that one vitamin pill a day is sufficient, it cannot then rely upon individual consumers reading the small—indeed miniscule—print on the back of its label to learn that instead of ONE A DAY, they should be taking two.

Much has changed since 1925 but we find nothing to suggest the public does not still expect that kind of responsible entrepreneurism from Merck—now a division of respondent Bayer Corporation —as well as the rest of the industry we entrust daily not just with goods and services but with our lives. So in this case we conclude Bayer has failed to appreciate the degree to which their trade name One Day has inspired reliance in consumers, and we hold an action alleging they violated California's Consumer Legal Remedies Act (CLRA, Civ. Code § 1770 ), Unfair Competition Law (UCL, Bus. & Prof. Code, § 17200 ) and express warranty law ( Com. Code, § 2313 ) should have survived demurrer.

As we will explain, we are well aware that two federal district courts have reached a different decision. In both Howard v. Bayer Corp. (E. D. Ark. July 22, 2011) 2011 WL 13224118, 2011 U.S. Dist. LEXIS 161583 ( Howard ) and Goldman v. Bayer AG (N. D. Cal. 2017) 2017 WL 3168525, 2017 U.S. Dist. LEXIS 117117 ( Goldman ) a bench officer saw this case differently than we do. But both cases are based on what we think is an untenable proposition: that the market for vitamins is undifferentiated; that the hypothetical "reasonable consumer" would, as a matter of law , examine the makeup of a daily vitamin supplement; that such a consumer would not rely upon the expertise of pharmacologists and doctors but would instead analyze the various concentrations of vitamins and minerals in each brand and draw a personal conclusion about which ingredients he/she needed in a daily vitamin supplement. We find nothing in law or experience to support that conclusion.

FACTS

Bayer AG (Bayer; the "AG" stands for Aktiengesellsschalft² ), maker and marketer of One A Day brand vitamins, was sued in Orange County Superior Court for alleged violations of the Consumers Legal Remedies Act, unfair competition law and express warranty law. Plaintiff William Brady's theory is that Bayer's packaging of its "Vitacraves Adult Multivitamin" line of gummies is misleading. As Brady inveighs, despite the One A Day brand name, these particular vitamins require a daily dosage of two gummies to get the recommended daily values. Thus buyers end up receiving only half the daily vitamin coverage they think they are getting.

The initial complaint was filed as a class action in March 2016, followed by an amended complaint in April, followed by a demurrer in May. The trial court, relying on the unpublished Howard decision mentioned above, involving these very facts—the supposedly misleading packaging of Bayer's One A Day gummies—sustained Bayer's demurrer without leave to amend.³

The problem is best represented by showing the product. So we reproduce here photos of the front and back of the bottles at issue:

Now the back:

While we cannot provide photos large enough to enable the reader to make it out, the line above the words "Supplement Facts" (the listing of vitamins and minerals provided by each gummie) says—in the smallest lettering on the bottle, an ocular challenge even when the bottle is full-sized and held in good light—"Directions : Adults and children 4 years of age and older. Chew two gummies daily." The issue before us is whether that language is enough to overcome the prominent and arguably advisory brand name of the product. We think not.

DISCUSSION

Our problem with Bayer's position is twofold. It seems to us to suffer from infirmities both factual and legal. The factual infirmity is that it requires us to accept the proposition that consumers do not rely on the expertise of One A Day when they buy vitamins.

One A Day has spent 75 years convincing the public they could be trusted to divine its vitamin needs.⁴ Most of the California consumers to whom One A Day sells have spent literally their entire lives listening to One A Day tell them, essentially, "Trust us. We know what you need. You will never know as much about vitamins as we do, but you can rely on us. Take one of our tablets every day and you won't need any other supplements."

And for all we know, that's absolutely true—except for the one tablet part. Presumably the One A Day formula represents the collective experimentation and wisdom of a host of medical professionals—doctors, pharmacologists, biochemists—who have concluded that certain levels of the substances in these formulas are the optimum levels for most of us. We have no reason to doubt the accuracy of One A Day's research or the formulations based on it. And it appears the consumers of California have concluded that One A Day is a company they can trust: You don't hang around for 75 years if people don't buy your product.

But now Bayer wants us to conclude that trust is not part of One A Day's success. They argue that modern consumers carefully read and analyze the formulations of the vitamins on the market and make their choices based upon their own expertise. They tell us—and the federal judges who accepted their arguments in Howard and Bayer —that consumers "look for the nutritional values" on the label and choose the supplements they buy based on comparison of those nutritional values. Instead of relying upon lifelong experience that One A Day is a trustworthy company that has been studying and analyzing our health needs for decades and has much more knowledge about those things than laypeople, Bayer says consumers look at the label and decide just how much selenium, biotin, pantothenic acid and zinc they need and then make their purchase after comparing those values with the labels on the vitamin bottles.

That's a stretch.

But as problematic as that factual depiction is, we must stretch much further to adopt Bayer's legal position. We must conclude that consumers do that as a matter of law .

This case has arrived here via sustained demurrer. To affirm the court below, we would have to conclude that even if plaintiff's allegations are true, there is no cause of action. ( Beacon Residential Community Assn. v. Skidmore, Owings, & Merrill LLP (2014) 59 Cal.4th 568, 571, 173 Cal.Rptr.3d 752, 327 P.3d 850.) We would have to conclude that the market for vitamins is undifferentiated, and that a hypothetical "reasonable consumer" would, as a matter of law , necessarily look behind the front label of a jar of Bayer's One A Day gummies and in the course of that action, would discover that not one gummie but two is what the company recommends.

We have been unable to reach that point. Not all reasonable vitamin buyers can be said to be alike as a matter of law. Some consumers would scoff at what they might consider the paltry daily dosage recommendations of One A Day; they might believe they need much higher amounts.⁵ Or lower. Those are the consumers Bayer has in mind—the ones who scrutinize the back ingredients label to assure themselves they are buying the amounts they, or their health care provider, think are needed. But other reasonable consumers will consider the daily dosages recommended by Bayer and the United States Food and Drug Administration (FDA) to be just fine—they might even consider those numbers a safe way to avoid against any danger of ingesting too much—and will rely upon the name they have come to trust.

"Whether a practice is deceptive, fraudulent, or unfair is...