Readers may recall our coverage in recent months of the challenge by Procter & Gamble (P&G) to an order certifying a multi-state consumer class in a case asserting that P&G falsely advertised its probiotic supplement Align. Last August, a divided panel of the Sixth Circuit affirmed class certification. In October, the Sixth Circuit stayed its decision pending P&G’s petition to the Supreme Court for certiorari, which the Supreme Court recently denied.

Align is an over-the-counter probiotic marketed to the general public as a supplement that “naturally helps build and support a healthy digestive system, maintains digestive balance, and fortif[ies] your digestive system with healthy bacteria.” P&G began selling Align in 2005, and launched a widespread promotional campaign for the product in 2009. The complaint asserts that Align is nothing more than “snake oil” because it does not provide any legitimate health benefits, but rather produces only a placebo effect.

In its opposition to class certification, P&G argued that class members had presented insufficient evidence to show they had suffered a common injury. Furthermore, P&G alleged that the named plaintiffs had presented only anecdotal claims that Align was ineffective and had therefore failed to demonstrate they had suffered any injury.

U.S. District Judge Timothy S. Black of the Southern District of Ohio granted plaintiffs’ motion to certify the suit as five single-state class actions. And a split Sixth Circuit panel upheld this decision, holding that, at the class certification stage, all the consumers needed to show was that they could eventually prove a common injury, not that they had already done so.

Sixth Circuit Judge Deborah Cook dissented, observing that the plaintiffs alleged that Align produced only a placebo effect without offering any proof in support of this argument. Moreover, “all the available evidence tends to show the opposite: that consumers benefit more or less from Align based on their individual gastrointestinal health.”

P&G moved to stay the Sixth Circuit panel’s ruling, arguing that it created a circuit split by upholding certification despite a lack of evidence that consumers were actually harmed. This outcome, P&G argued, conflicted with the Seventh Circuit’s decision in Szabo v. Bridgeport Machs., Inc, 249 F.3d 672 (7th Cir. 2001), which held that since an order certifying a class is usually the district judge’s “last word on the subject,” certifying classes on the basis of incontestable allegations in the complaint improperly postpones necessary factual inquiries into issues such as numerosity and commonality. P&G posited that as a result of this circuit split, the Supreme Court was likely to consider the issue. The Sixth Circuit agreed to temporarily stay class certification to allow P&G to petition for certiorari.

P&G filed its cert petition, which was supported by amici including the Chamber of Commerce, Business Roundtable and the International Association of Defense Counsel. However, at the end of last month, the Supreme Court denied cert, deciding not to address the Circuit split and leaving in place the Sixth Circuit’s ruling.

Of course, the denial of cert is not a decision on the merits, and the propriety of the Sixth Circuit’s view of a class certification movant’s burden may be decided by the Supreme Court (or by courts outside the Sixth Circuit) at a future time. Watch this space for subsequent developments in this case and on this class certification issue.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.