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 In an order made public on Friday, U.S. District Judge Jose Linares
in Newark, New Jersey refused to hold Bayer Corp in contempt for
having allegedly violated a 2007 consent decree governing how it
markets dietary supplements.
FTC spokesman Mitchell Katz declined to comment on Monday.
The government alleged that Bayer lacked reliable scientific
evidence to support its claim that its Phillips' Colon Health could
"defend against" occasional constipation, diarrhea, and gas and
bloating, and its implied claim that the product could cure those
conditions.
According to the government, Bayer made the claims in a nationwide
campaign that included print and TV advertising featuring "The Colon
Lady."
Consumers spent "hundreds of millions of dollars" on the product,
and damages "equal to the amount of consumers' loss resulting from
Bayer's contempt" were sought, court papers show.
Linares ruled following a non-jury trial in June. His decision was
filed under seal, but may be made public because the parties do not
object, a court filing shows.
Bayer in a statement said it was pleased with the decision, and that
claims about the product were "fully substantiated" by "numerous"
clinical, animal and genetic studies.
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Jonathan Cohn, a partner at the law firm Sidley Austin representing
Bayer, in a phone interview said the government had been trying to
impose a "novel, unlawful standard" on Bayer.
"The government had been seeking to subject dietary supplements to
the same gold standard for testing as prescription drugs," he said.
"Bayer has faithfully followed the law, including the FTC's previous
guidance."
The case is U.S. v. Bayer Corp, U.S. District Court, District of New
Jersey, No. 07-00001.
(Reporting by Jonathan Stempel in New York; Editing by Marguerita
Choy and Jonathan Oatis)
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