Bayer Suffers From Class Certification Headache8 May, 2012 By: John Waller, Blank Rome LLP, Jeffrey Richter
In designing their marketing campaigns, many marketers strive to create a simple, pithy, unifying claim or message in their advertising to catch the attention of their target audience – and then seek to reinforce that claim or message on their packaging. While that makes perfect sense from a marketing perspective, if that central claim or message is ultimately challenged as being allegedly deceptive or misleading, the marketer’s attempt to develop a unified marketing campaign will likely render any claims regarding their marketing practices more susceptible to being prosecuted as a class action comprised of most, if not all, of their customers.
Particularly in California, where the standard under several of the state’s consumer protection laws is whether a “reasonable consumer” would be misled by the allegedly deceptive advertising, if the claim is a central element of the advertising campaign or is prominently displayed on the packaging for the product, then substantially all purchasers of the product are likely to have been exposed to the allegedly deceptive claim and the prospect for having a class of such allegedly injured customers certified will be substantial.
This problem was recently illustrated in a lawsuit filed against Bayer Corp. (Johns v. Bayer Corp.) on behalf of a class of customers who purchased its “Men’s Vitamins.” Bayer’s advertising for its vitamins, and its statements on the packaging therefore, claimed that taking Men’s Vitamins daily would “support prostate health.” The plaintiffs alleged that Bayer had no credible and reliable scientific support for its claim and, thus, that Bayer’s claims constituted false advertising under California law.
Although Bayer argued that individual issues, such as whether individual class members had watched specific advertisements and relied upon specific claims, predominate over the alleged common issues, thereby precluding class certification, the court disagreed, concluding that common questions in the case predominate over individual issues because, “at a minimum, everyone who purchased the Men’s Vitamins would have been exposed to the prostate claim that appeared on every package from 2002 to 2009. This is the predominant issue, not whether or not consumers also saw television or print advertisements.” The Court noted, “When plaintiffs are exposed to a common advertising campaign, common issues predominate.”
While many marketing campaigns no doubt benefit from consistently focusing upon a single pivotal claim about the product, many marketers – especially those who pursue aggressive strategies to convey the attributes of their products to their target customers – may find it desirable to attempt to dissuade potential litigants, or to at least to minimize some of their financial exposure, by employing measures to diminish the likelihood of having a class of their customers certified if litigation relating to their marketing practices arises. Simple actions – such as varying the claims made in their advertising about (or packaging for) the product, using different language to convey those claims to the target audience, or utilizing regional rather than national marketing campaigns – may reduce the size of a class or the likelihood of a class being certified if issues arise regarding their advertising claims.