Bayer’s One A Day Vitacraves Adult Multivitamin photos that are part of the decision in Brady v. Bayer.

A California appellate court has breathed new life into a lawsuit against Bayer Corp. that claims  the pharmaceutical company misled consumers about the potency of a certain line of its “One A Day” brand vitamins.

The Fourth District Court of Appeal on Friday found language on the back of containers of Bayer’s One A Day VitaCraves Adult Multivitamin advising consumers to consume two of the gummy vitamins to meet daily recommended values was not enough “to overcome the prominent and arguably advisory brand name of the product.”

Above the “Supplement Facts” on the label on the back of the bottle, it says “Directions: Adults and children 4 years of age and above. Chew two gummies daily.” But Fourth District Justice William Bedsworth noted that the directions contradicted the more prominently displayed brand name on the front of the bottle, and that they were written “in the smallest lettering on the bottle, an ocular challenge even when the bottle is full-sized and held in good light.”

“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,” Bedsworth wrote. “That’s a stretch.”

The Fourth District’s decision comes after two federal courts dismissed lawsuits targeting Bayer with similar claims related to the discordant brand name and dosing instructions. Bedsworth, who was joined in his decision by Presiding Justice Kathleen O’Leary and Justice Richard Aronson, however, disagreed with the two federal judges who concluded that any reasonable consumer would read the label of a “medicine-like” product like vitamins.

The One A Day products, Bedsworth wrote, “are targeted at more casual consumers” than the sorts who peruse labels in health food stores. “Not only are two different kinds of sugars (glucose syrup and sucrose) listed as the most prominent ingredients, but each gummie—depending upon flavor—contains one of three kinds of artificial dye,” Bedsworth added in a footnote. “These are mass-market products. They’re gummies, for crying out loud.”

Bayer’s lawyer, David Carpenter of Sidley Austin, didn’t respond to a message Friday afternoon. A company spokeswoman said in an email Monday that the ruling didn’t address the merits of the case, and Bayer looked “forward to presenting our defense in court.”

Scott Cooper, the lead plaintiffs lawyer on the case, was appointed to the Orange County Superior Court bench while the case was pending on appeal. His former associate, Samantha Smith, continues to handle the case at her new firm, Aegis Law.

“We are pleased with the court’s decision and look forward to continuing to litigate the case on behalf of consumers,” Smith said in an emailed statement.

 

Read the decision below: