Probiotic victory: Judge refuses to certify class in false advertising lawsuit vs Yakult USA

By Elaine Watson

- Last updated on GMT

Judge won't certify class in lawsuit vs probiotics expert Yakult USA

Related tags World health organization Lawsuit

A California judge has refused to certify a class of consumers in a lawsuit accusing Yakult USA of misleading shoppers about the digestive health benefits of its fermented drinks.

Plaintiff Nicolas Torrent - who filed a false advertising lawsuit vs Yakult USA last year – alleged that there is “no credible scientific evidence that the probiotics in Yakult can do what Defendant advertises” ​and sought to represent a class of consumers that bought Yakult in California since Jan 27, 2011.

Yakult USA’s attorneys, meanwhile, pointed to an “extensive body of scientific literature​” supporting its claims and vowed to vigorously defend the case.

A jury will not get to decide who is right, however, because Torrent lacks standing to pursue his claims for injunctive relief  (eg. to force Yakult USA to change its labels/ads), concluded US District Judge Cormac J Carney in a January 5, 2016 order.

"Because Torrent has not even alleged that he intends to by Yakult in the future, let alone submitted evidence to that effect, the Court concludes that he lacks Article III standing to pursue injunctive relief here."

Plaintiff lacks standing to force Yakult to change its labels

While this might seem odd (why would someone suing a company keep on buying its products?) it reflects the legal argument that if Torrent has no plans to buy Yakult again, there is no risk that he will be misled in the future and therefore injunctive relief (changing the label) is unnecessary, explained one legal source. 

While other forms of relief could address the alleged harm he has suffered, Torrent's attorney indicated in oral arguments that he is not seeking damages and restitution, so he has run out of options, he added.

What are probiotics?

According to the World Health Organization, probiotics are “live microorganisms that, when administered in adequate amounts, confer a health benefit on the host.”

Marketing probiotics

While several firms marketing probiotics have got into legal hot water in the US (notably Dannon, which was told by the FTC to moderate its claims about Activia in 2011​), manufacturers are allowed to make structure-function claims about probiotics such as ‘supports digestive health’, if they can support them with evidence, making the US a more appealing environment than Europe, where firms are prohibited from even using the term ‘probiotic’.

Studies​ on Yakult’s proprietary probiotic strain Lactobacillus Casei Shirota​ suggest it could potentially confer a wide range of health benefits from helping to strengthen the immune system to tackling GI tract conditions such as Crohn’s disease.

However, Yakult USA has been fairly conservative in its language on pack, opting for the generic phrase: ‘Drinking one or two bottles daily may balance your digestive system and maintain overall health.’

*The case is Nicolas Torrent et al v Yakult U.S.A. Inc, case # 8:15-cv-00124 filed in the Central District of California.

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