Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Probiotics

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

By Lawrence Weinstein, Daniel Werb and Russell Kostelak on Posted in Lanham Act
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

By Lawrence Weinstein, Alexander Kaplan and Sarah Sullivan on Posted in Ascertainable Class, Class Actions, Commonality Requirement, Deceptive Trade Practices, Typicality Requirement
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

By Lawrence Weinstein and Sarah Sullivan on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices, Typicality Requirement
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

By Alexander Kaplan and Jeff Warshafsky on Posted in Regulatory
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

By Lawrence Weinstein, Alexander Kaplan and John Browning on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices, Typicality Requirement
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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