Anthony Almada, a biochemist and president and chief scientific officer of California-based nutrition consultancy, IMAGINutrition, said the settlement “ripped a hole” in Dannon’s immunity and gut health claims for the two yogurt products in question – DanActive and Activia.
“Companies can go on all they like about making these kinds of settlements because they wish to avoid the cost of litigation and negative publicity, but this settlement compromises the integrity and totality of Dannon’s claims,” he told NutraIngredients-USA.com.
“It is another example of a large company doing science and assuming it is good enough and coming up short under challenge. On the plus side this might drive them to perform some better studies conducted on healthy populations.”
Dannon spokesperson, Michael Neuwirth, said the detailed changes outlined in the settlement would, “enhance consumer understanding”.
Reasons to settle
But veteran claims lawyer, Jonathan Emord, who has represented probiotic food companies but not Dannon, said the fact Dannon had settled out-of-court did not necessarily mean the company admitted to wrongdoing.
“It is presumptuous in the extreme to conclude that Dannon entered into the settlement because it believed its claims incredible,” he said. “Large corporations weigh the economic impact of private and public suits and investigations and often agree to pay funds in settlement to avoid potentially greater costs. They do so even in instances where they possess credible evidence. Danone is an excellent company with fine products and reasonable claims.”
Many settlements occurred because clients did not want to, “incur the enormous costs of experts, discovery, motion practice, and trial, as well as the negative publicity that can arise from defamatory republication of false charges”.
Emord added that scientific data rarely delivered a 100 per cent conclusive outcome, but that was not a good reason to censor statements about health benefits as long as they were not misleading.
“The current attack on immune enhancement claims is based on a strained argument. The word immunity should not be so narrowly construed as to exclude all claims associated with products that supply the body with ingredients that can be used to help support and maintain healthy immune system function but do not immediately and directly alter that function.”
“Those who condemn the science on which Dannon relies for its claims are themselves guilty of a selective culling and reading of the science. In other words, the vast majority of science is subject to debate, but that fact does not mean that claims are based on less than credible evidence."
He speculated that a “modern Dark Age” could be created, “where information would lay locked in government vaults and the public would be denied information needed to innovate in ways that improve the human condition.”
Further actions
Colorado-based food lawyer, James Prochnow, said the action was a harbinger of further actions, noting that General Mills was being actioned by the same legal firm over its probiotic yogurt, Yo-Plus.
“Companies must engage in specific R&D with respect to possible benefits of their products and , above all, be forthright with their consumer purchasers about matters such as their scientific basis for Recommended Daily Use and their cautionary statements and warnings as well as their claims,” he said. “The fact that the lawsuit was settled is of less significance than its filing.”
The settlement
The settlement saw Dannon establish a $35m fund to pay disgruntled customers a maximum of $100 each. The company also agreed to change its labelling and marketing to better highlight the strains it uses, modify language, add rejoinders and remove the stand-alone word, “immunity” from its drinking yogurt, DanActive.
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