When One a Day Isn’t Enough

Product-labeling plays a key role in how we make our buying choices.

Some are merely catchy or present such a compelling culture that you are drawn in.  Slogans like Nike’s “Just Do It” or KFC’s “Finger Lickin’ Good” or Lays Potato Chips, “Betcha Can’t Eat Just One” (maybe I’m dating myself with that one).

These taglines are fun, creative and set a stage where you want to sample the product being hyped. Advertisers since “Mad Men” have striven to hatch such discoveries that stay with the consumer.

The three above slogans are just that – something used to suggest the mission or culture of a company. A place where people take daring challenges or cook really delicious food (regardless of how good it is for you).

Then there are those labels go the next step. These make a claim about the product. M&M’s “Melts In Your Mouth, Not In Your Hand” is a classic, or Energizer batteries (the one with the tireless bunny) “It Keeps Going, And Going, And Going.”

Finally, there are those products whose name alone does all of their advertising. No need for a catchy jingle. Just say the name and you automatically know what the item does. One of the best known of these is One A Day Vitamins. All you need to do is take one of these pills and you have all of the vitamins you need for a full day.

This is a Madison Avenue homerun.  Name, slogan and tagline all wrapped together. Great, unless, of course, the name isn’t exactly accurate. Like One A Day’s gummy vitamins — because the name for them should actually be “Two A Day.”

This controversy was the subject of a recent California Court of Appeal decision, Brady v. Bayer.  Brady sued Bayer on behalf of an anticipated class of consumers who, Brady alleged, were deceived by Bayer’s packaging on One A Day Gummies. The bottle’s front label says, “One A Day.” But the back label contradicts the implied requirement that only one gummie a day is needed to get your full vitamin regimen satisfied.

The lower court had ruled that Brady had not stated a basis for continuing the lawsuit, essentially finding “that the hypothetical ‘reasonable consumer’ would, as a matter of law, examine the makeup of a daily vitamin supplement; that such a consumer would not rely upon the expertise of pharmacologists and doctors,  but would instead analyze the various concentrations of vitamins and minerals in each brand and draw a personal conclusion about which ingredients he/she needed in a daily vitamin supplement.”

The appellate court eschewed such reasoning, declaring about the back label:

“But the most damaging of these themes to Bayer’s position in our case is … the front-back problem. The front of the product makes no attempt to warn the consumer that a one-a-day jar of gummies is in fact full of two-a-day products. One must look at the back of the jar, in small print in the upper right hand corner, to receive the direction to “Chew: two gummies daily,” making a “Serving Size” is indeed two gummies. And unlike the billboard, sunburst-backed brand name print, that information is printed in nano-type… The front label fairly shouts that one per day will be sufficient.”

The justices ruled that Brady had sufficiently stated in his complaint that Bayer engaged in a practice that is deceptive, fraudulent or unfair.

The message to manufacturers: Make sure your product backs up your hype. ©

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