Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Probiotics

$15 Million False Ad Verdict Boosts Damages In Probiotic IP Dispute

On November 20, 2018, a years-long dispute before Judge Theodore Chuang in the District of Maryland over probiotics culminated in a gut-wrenching $18 million jury verdict against defendant pharmaceutical companies.  The case is De Simone v. VSL Pharmaceuticals, Inc. et al., No. 8:15-cv-01356. The dispute involved numerous claims and counterclaims, including both a claim and a … Continue Reading

Stars Fail to Align for P&G, as Supreme Court Rejects Class Certification Appeal

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 … Continue Reading

With Circuits Mis-Aligned, Sixth Circuit Stays Class Certification Pending Appeal

As our readers may remember, Procter & Gamble (“P&G”) stomached a loss last August when the Sixth Circuit affirmed certification of a false advertising class action regarding P&G’s Align probiotic supplement. But on October 27, the Sixth Circuit stayed its decision pending P&G’s petition for certiorari to the Supreme Court. As discussed below, P&G contends … Continue Reading

Punch to the Gut: Government Denied Contempt Ruling in Bayer Probiotic Case

Bayer recently avoided a contempt finding concerning its Phillips’ Colon Health (“PCH”) probiotics advertising. Bayer advertised PCH as “Promot[ing] Overall Digestive Health” and “Help[ing] Defend Against Occasional Constipation, Diarrhea, Gas and Bloating.” The Government contended Bayer violated a 2007 consent decree requiring Bayer to possess “competent and reliable scientific evidence” substantiating such claims. To support … Continue Reading

Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case

A recent Sixth Circuit decision that affirmed certification of a multi-state consumer class action asserting false advertising claims concerning Align – a Proctor & Gamble probiotic product promising digestive health benefits – has left us with an uneasy feeling in the pit of our stomachs. In Rikos v. P&G, the judge writing the opinion of … Continue Reading
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