Consumer Law

According to Reuters, a class action lawsuit was filed earlier this week alleging that Dannon Co. Inc. falsely advertised that its Activia, Activia Lite and DanActive products were "clinically" and "scientifically" "proven" to have health benefits that other yogurts do not.  According to the lawsuit, Dannon's own studies fail to support its advertised claims.  As one would expect, the suit seeks astronomical damages. 

Increasingly companies are advertising the benefits of probiotics, prebiotics, and foods with enhanced health qualities.  (See the AdAge stories here and here).  As these claims become more prominent, they are likely to draw increased attention from plaintiffs and it would not surprise me if they generated some interest on the part of the Federal Trade Commission.  Often these advertisements expressly state that scientific "tests prove" the benefits of the advertised product.  In advertising law speak, these are "establishment claims" --  the test establishes or proves the claim.  Establishment claims are held to a higher standard than typical claims regarding a product's benefit.  Therefore, a plaintiff in a false advertising lawsuit under the Lanham Act can prevail by showing that the test does not support the proposition for which it is relied upon in the ad.  This can be accomplished by showing that the test is unreliable or does not measure the attribute claimed.

My family has been buying DanActive for years, so I hope that the claims are true and that Dannon has competent and reliable scientific data to prove it. 

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