This case holds that plaintiff states a viable cause of action under the UCL and FAL and for breach of warranty by stating that Bayer’s One-A-Day chewie vitamins are mislabeled–two a day is required to meet recommended daily allowances for most vitamins. The decision contains a helpful review of prior labeling cases, drawing four principles from them: (1) plaintiff’s claim of mislabeling must pass the common sense test, (2) literally false labeling is always actionable, and literally true labeling may be actionable if misleading, (3) a defendant cannot escape liability for a false front label by disclaimers on rear labels, and (4) the product name itself can be false advertising if it misdescribes the product. Bayer’s product offended all of these rules. The product name was literally false. One-A-Day was insufficient. One-A-Day was prominently stated on the front label. A minuscule statement on the back label that the serving size for adults was two a day could not cure the falsity of the front label. And it did not offend common sense to think that a reasonable consumer would read the One-A-Day name and think it meant only one Chewie a day was needed, and rely on Bayer to know what was sufficient when taken at that rate.
California Court of Appeal, Fourth District, Division 3 (Bedsworth, J.); September 7, 2018; 26 Cal. App. 5th 1156