Dannon to reimburse consumers and change ads

by Jeff Gelski
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WHITE PLAINS, N.Y. – The Dannon Co. will create a $35 million fund to reimburse qualified consumers up to $100 for products purchased, according to settlement terms of a class-action lawsuit involving alleged misleading advertising for the company’s Activia and DanActive yogurt products. Additionally, Dannon will change its advertising of the products.

"The company has decided to settle the lawsuit to avoid the uncertainty and expense of further litigation and denies any wrongdoing," said Michael Neuwirth, spokesperson for The Dannon Co., on Sept. 18.

The settlement is subject to approval by the U.S. District Court for the Northern District of Ohio.

Filed in January 2008, the lawsuit alleged The Dannon Co. made statements in its marketing and advertising materials for Activia, Activia Light, DanActive and DanActive Light were deceptive.

Under the settlement, Dannon will remove the word "immunity" from the product labeling and packaging of its DanActive branded products. The phrase "they have a positive effect on your digestive tract’s immune system" will be removed from the inside packaging. The company may substitute that phrase with the phrase "they interact with your digestive tract’s immune system."

Dannon may state the DanActive branded products with L. casei Immunitas are "clinically proven" or "scientifically proven" to help strengthen your body’s defenses. The company also may state the product helps support the structure or function of the digestive tract’s immune system.

In regard to Activia branded products, Dannon may state the products with Bifidus Regularis are "scientifically proven" or "clinically proven" to help regulate the digestive system. The claim must be qualified with the explanatory statement that the product helps with slow intestinal transit when eaten daily for two weeks as part of a balanced diet and healthy lifestyle.

On the product label for Activia, the qualifier shall be made on the external back of the product packaging or over-wrap. The qualifier shall be displayed prominently in television commercials, on point-of-purchase displays, on web sites, in medical marketing materials and in print advertising.

On its web sites, Dannon will state Activia and DanActive brand products are food products and not treatments or cures for any medical disorder or disease. Also on the web sites, Dannon will place Bifidobacteria lactis DN 173-010 (the scientific name for Bifidus Regularis) in close proximity to the Food and Drug Administration required nutritional label and ingredient list for Activia branded products. Dannon will do the same for Lactobacillus casei DN 114-001 (the scientific name for L. casei Immunitas) for DanActive branded products.

Dannon will place the correct genus, species and strain designations when referring to the probiotic strains on the inside packaging at least the first time Bifidus Regularis or, as applicable, L. Casei Immunitas is mentioned on the inside packaging.

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