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Should One-A-Day Be Once-A-Day?

Miles Laboratories pioneered the concept of daily dosing of multivitamins and minerals in the 1940s with the introduction of its One A Day brand.  Now owned by Bayer AG, the brand encompasses a suite of vitamins for targeted at men, women and children.  Last week, Bayer AG suffered a setback when a California Court of Appeal allowed a class action alleging that the name was misleading to proceed.  Brady v. Bayer Corp., 2018 Cal. App. LEXIS 800.

The fundamental allegation in the case is that Bayer's packaging of its "Vitacraves Adult Multivitamin" line of gummies is misleading because despite the One A Day brand name, the back of the bottle instructs consumers to chew two gummies.  Thus, a bottle containing 100 gummies represents a 50, not 100, day supply.

Writing for the court, Justice William W. Bedsworth focuses on common sense, literal truth and the nature of the brand name.  But what is the "One" in the "One A Day" brand name?  Does it refer to one gummie or simply taking your vitamins once a day?  

The court's opinion is also a useful reminder that product descriptions constitute express warranties under the Uniform Commercial Code.  Cal. Comm. Code § 2313. 

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