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How a Legal Loophole Let Bayer Claim That Vitamins Prevent Prostate Cancer

A class action lawsuit against Bayer (BAY) over its alleged false claims about One A Day Men's Multivitamins will go to trial, a federal judge has ruled. The case is one in an avalanche of litigation over Bayer's outlandish advertising for the product. The suits mostly hang Bayer with its own rope: The company ran radio and TV ads claiming One A Day could prevent prostate cancer.

While Bayer may whittle down the litigation on legal technicalities, the facts are fairly clear. Vitamins don't prevent prostate cancer or help you lose weight (another Bayer claim) and yet the company has spent years telling people the opposite. Bayer's lies worked: The brand's sales rose 16.1 percent to €36 million in Q1 2010. Now all that revenue is under threat -- it could easily be eaten by lawyers fees and damages awards.

According to a South Carolina class action complaint, Bayer's ads said this:

Packaging: Did you know that prostate cancer is the most frequently diagnosed cancer in men and that emerging research suggests selenium may reduce the risk of prostate cancer?

Radio: Prostate cancer. It's an important subject. Did you know that there are more new cases of prostate cancer each year than any other cancer? And here's something else you should know. Now, there's something that you can do that may help reduce your risk. Along with your regular doctor checkups, switch to One A Day men's. A complete multivitamin plus selenium, which emerging research suggests may reduce the risk of prostate cancer.

TV: Did you know one in three men will face prostate issues? One in three, really? That's why One A Day Men's is a complete multivitamin with selenium which emerging research suggests can help prostate health.

Bayer made these claims even though studies in 2003 and 2008 showed that selenium had no benefit for prostate cancer and, in fact, may hurt patients once they contract the disease, the suit alleges.

While companies routinely exaggerate or shade their product claims, it's rare to see outright falsehoods like those made by Bayer. Nor is it clear why Bayer thought it could get away with it. The company's ad agency is BBDO, a large, respected ad agency that ought to have known better about the consequences of making false medical claims. The One A Day story is a cautionary tale for brand managers: Don't do this.

Naturally, lawyers have rushed to sue the company and collect damages awards. The Center for Science in the Public Interest sued after Bayer failed to remove prostate claims from its marketing even after the FDA announced that selenium had no benefit. The company has also been sued over for advertising One A Day as a weight loss product in Arkansas and New Jersey.

It's not as if Bayer wasn't warned. Bayer has been cited by the FTC twice before for making false claims about its One A Day products. In 2007 the company paid a $3.2 million penalty for falsely claiming that vitamins could help weight loss; that penalty came because Bayer broke a previous agreement not to make false claims about its vitamins.

The FTC has no excuses for not acting against Bayer since then. On June 18, 2009, nine prominent cancer researchers wrote to the agency, describing their research on selenium, to ask that it "halt these ads as soon as possible."

Why were they writing to the FTC and not the FDA, the agency responsible for regulating the drug industry? Because One A Day is a vitamin and subject to a loophole in the law that prevents the FDA from setting standards in the diet supplement world. Patients literally have to die -- as they did from using Hydroxycut -- before the FDA can act.

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