(En)force to be reckoned with

Companies that sign settlements with the FTC need to know that those documents contain consumer protection provisions enforceable in court.  That’s the message of a motion for contempt just filed against Bayer Corporation by the Department of Justice and the U.S. Attorney’s Office for the District of New Jersey, with the assistance of the FTC.

The action stems from a massive campaign Bayer runs for Phillips’ Colon Health.  Packaging, TV commercials, and print ads – which often feature “The Colon Lady” – expressly claim the product can “defend against” occasional constipation, diarrhea, gas, and bloating.  The lawsuit alleges that Bayer's ads imply to consumers that Phillips' Colon Health prevents, treats, and cures those conditions.  People spent hundreds of millions on dollars on the product, but according to the complaint, Bayer didn’t have competent and reliable scientific evidence to support those representations.

Standing alone, that would be a serious allegation – but there’s more to the story.  In 1991, the FTC filed a lawsuit against Miles, Inc., a predecessor of Bayer, for unsubstantiated claims for One-A-Day multivitamins.  That case ended with a settlement requiring the company to have competent and reliable scientific evidence to support representations about One-A-Day.

Then in 2007, the United States filed an action alleging that Bayer had violated the FTC order by making unproven metabolism and weight control claims for One-A-Day WeightSmart.  That settlement included a $3.2 million civil penalty and provisions banning misrepresentations about the benefits, performance, efficacy, or safety of any dietary supplement, multivitamin, or weight control product.

The Motion to Show Cause just filed by the Department of Justice alleges that Bayer's unsubstantiated claims for Phillips' Colon Health violate the terms of that 2007 FTC order.  The action is pending in federal court in New Jersey.