NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

IN RE: BAYER PHILLIPS COLON HEALTH 

PROBIOTIC SALES PRACTICES 

LITIGATION,

Civil Action No. 11-3017 (JLL)

OPINION

LINARES, District Judge.

This is a putative class action brought by Plaintiffs Troy Yuncker and Dino Rikos on behalf 

of themselves and all individuals who purchased Bayer’s over-the-counter Phillips’ Colon Health 

Probiotic + Fiber product and/or Phillips Colon Health Probiotic Caps (collectively, “Phillips’ 

Colon Health”). Plaintiffs allege, inter alia, that Bayer’s representations that Phillips’ Colon 

Health “helps defend against” “constipation, diarrhea, [and] gas and bloating” are false and 

misleading. Currently before the Court is a motion to dismiss Plaintiff’s First Consolidated 

Amended Class Action Complaint (hereinafter referred to as Amended Complaint) pursuant to 

Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Bayer. The Court has considered the 

submissions made in support of and in opposition to Bayer’s motion, and decides this matter

without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth 

below, Bayer’s motion is granted in part and denied in part.

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I. BACKGROUND1

In October 2008 and June 2009, Bayer—which maintains its global headquarters in 

Morristown, New Jersey—began marketing Phillips’ Colon Health Probiotic Caps and Phillips’ 

Colon Health Probiotic + Fiber, respectively. (Am. Compl., ¶ 3). Phillips’ Colon Health is sold 

nationwide in the digestive health sections of drug, grocery and mass retailers. (Id., ¶ 7). 

Prominently placed on its label and throughout its other advertisements, Bayer stated and continues 

to state that Phillips’ Colon Health contains “3 strains of good bacteria to promote overall digestive 

health,” and “help[] defend against occasional: constipation, diarrhea, [and] gas and bloating.” (Id., 

¶ 3). It advertised and continues to advertise that with “scientific evidence” supporting the health 

benefits of its “probiotic” bacteria, Phillips’ Colon Health supports your “digestive system” and 

“immune system.” (Am. Compl., ¶ 3). Bayer conveyed its claims about Phillips’ Colon Health on 

the Phillips’ Colon Health’s packages and labels, through a variety of media, including the Internet, 

television advertising, in-store sampling, and point-of-sale displays, and on every Phillips’ Colon 

Health container. (Id., ¶ 5). Through this extensive advertising campaign, Bayer has consistently 

conveyed one message: Phillips’ Colon Health, with its probiotic bacteria cultures, is scientifically 

proven to provide all consumers with digestive and immune system health benefits. (Id., ¶ 6).

Notwithstanding Bayer’s representations, the Amended Complaint alleges that the 

ingredient matrix found in Phillips’ Colon Health—which includes the following three strains of 

bacteria: lactobacillus gasseri, bifidobacterium bifidum, and bifidobacterium longum—does not 

provide the digestive health and/or immune system benefits that Bayer claims. (Am. Compl., ¶ 4). 

In support of this position, the Amended Complaint cites to a variety of scientific opinions and 

studies. 

 

1 The following relevant facts are presumed to be true solely for purposes of this motion.

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For example, the Amended Complaint alleges that, in July 2009, the European Food Safety 

Authority (“EFSA”) reviewed the scientific proof in relation to lactobacillus gasseri—one of the 

strains of bacteria contained in Phillips’ Colon Health—and concluded that the data available do 

not demonstrate a cause and effect relationship between consuming the bacteria and improvement 

of intestinal transit within the normal range. (Am. Compl., ¶ 37). The Amended Complaint also 

alleges that the EFSA analyzed and reviewed the studies regarding the two other strains in Phillips’ 

Colon Health (bifidobacterium bifidum and bifidobacterium longum) and concluded, in a 2009 

scientific opinion, that a cause and effect relationship has not been established between the 

consumption of the combination of bifidobacterium bifidum, bifidobacterium breve, 

bifidobacterium infantis, bifidobacterium longum, and decreasing potentially pathogenic intestinal 

microorganisms in infants and children aged between 0 and 36 months. (Am. Compl., ¶ 38). The 

Amended Complaint goes on to refer to a 2008 study wherein the EFSA reviewed scientific studies 

for a claim that consuming a bacterial powder containing bifidobacterium longum and two other 

strains “improve[s] the general immunity by maintaining the microbiological balance” and 

concluded that the one unpublished in vitro study it was provided did not establish the claimed 

immune system improvement. (Id., ¶ 39). The Amended Complaint also refers to a 2012 scientific 

opinion published by the EFSA based on a review of purported proof for claims that consumption 

of the combination of the same three bacteria strains in Phillips Colon Health provides defenses 

against unhealthy bacteria in the general adult population. There, the EFSA concluded that no 

cause and effect relationship has been demonstrated for the consumption of the three bacteria in 

Phillips Colon Health and the maintenance of defenses against pathogenic bacteria. (Am. Compl., 

¶ 41). 

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In light of the foregoing, Plaintiffs bring this action on behalf of themselves and other 

similarly situated consumers to halt the dissemination of this false and misleading advertising 

message, correct the false and misleading perception it has created in the minds of consumers, and 

obtain redress for those who have purchased Phillips’ Colon Health. (Am. Compl., ¶ 8). Plaintiffs 

are Troy Yuncker (a citizen of Illinois who purchased the product at a Walgreens in Illinois in May 

2011) and Dino Rikos (also a citizen of Illinois, who purchased the product in California and 

Illinois, respectively, at various times in 2010). (Am. Compl., ¶¶ 11, 12). Plaintiffs’ Complaint 

was originally filed in May 2011. A First Consolidated Amended Class Action Complaint 

(“Amended Complaint”) was filed in March 2014. Plaintiffs now allege violations of the New 

Jersey Consumer Fraud Act (“NJCFA”), California’s Consumers Legal Remedies Act (“CLRA”), 

California’s Unfair Competition Law (“UCL”), Illinois Consumer Fraud Act (“ICFA”), breach of 

implied warranty of merchantability, and unjust enrichment. This Court’s jurisdiction over this 

action is premised on 28 U.S.C. § 1332(d)(2). Defendant filed a motion to dismiss the Amended 

Complaint on April 30, 2014. This matter was reassigned to the undersigned on October 9, 2014. 

II. LEGAL STANDARD 

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[c]ourts are 

required to accept all well-pleaded allegations in the complaint as true and to draw all reasonable 

inferences in favor of the non-moving party.” Phillips v. County of Allegheny, 515 F.3d 224, 231

(3d Cir. 2008). But, “[f]actual allegations must be enough to raise a right to relief above the 

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts are not required 

to credit bald assertions or legal conclusions draped in the guise of factual allegations. See In re 

Burlington Coat Factory Sec. Litig., 114 F.3d at 1429 (3d Cir. 1997). “A pleading that offers 

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‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not 

do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Thus, a 

complaint will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, 

to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 

550 U.S. at 570).

III. DISCUSSION2

A. Consumer Fraud Claims

Defendant Bayer moves to dismiss Plaintiffs’ New Jersey Consumer Fraud Act claim on 

the basis that New Jersey law is inapplicable to consumer fraud claims brought by Illinois residents 

who purchased Phillips’ Colon Health in either Illinois or California.

1. NJCFA

A federal court sitting in diversity applies the choice of law principles of the forum state. 

See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941); Warriner v. Stanton, 475 

F.3d 497, 499–500 (3d Cir. 2007). In P.V. v. Camp Jaycee, the New Jersey Supreme Court held 

that the “most substantial relationship” test enunciated in the Restatement (Second) of Conflict of 

Laws § 188 applies to choice of law disputes arising under both contract and tort law. 197 N.J. 

132, 136 (2008). New Jersey's “most significant relationship” test consists of two prongs. First, a 

 

2 To the extent Plaintiffs urge the Court to deny Defendant’s motion as barred by Federal Rule of 

Civil Procedure 12(g)—on the basis that it raises new arguments that could have been raised by 

Bayer in its prior motion to dismiss—such request is denied. It is clear that Plaintiffs have 

added a number of new factual allegations to the Amended Complaint to address, inter alia, 

when and where they purchased the products at issue, in accordance with the Court’s March 14, 

2014 ruling. In the interest of fairness, and based on the Court’s inherent authority to manage its 

docket, the Court finds that Defendant should be permitted to raise those challenges that may not 

have been available to it based on the prior iteration of Plaintiffs’ complaint. 

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court must examine the substance of the potentially applicable laws in order to determine if an 

actual conflict exists. Id. at 143 (citing Lebegern v. Forman, 471 F.3d 424, 430 (3d Cir. 2006)). If 

there is no actual conflict, the analysis ends and the court applies the law of the forum state. See 

In re Ford Motor Co., 110 F.3d 954, 965 (3d Cir.1997); Rowe v. Hoffman—La Roche, Inc., 189 

N.J. 615, 621 (2007). However, if a conflict is found, the Court must weigh the factors enumerated 

in the Restatement section corresponding to the plaintiff's cause of action, in this case, § 148 of 

the Restatement (Second) of Conflict of Laws since Plaintiffs’ NJCFA claim sounds in fraud or 

misrepresentation. Section 148 contemplates two scenarios in which a plaintiff asserts a claim for 

fraud or misrepresentation. The first scenario involves misrepresentation claims in which both the 

alleged harm suffered by a plaintiff and the action in reliance of any false representations occur in

a single state. The second scenario contemplated under § 148 is where a plaintiff's action in reliance 

takes place in a state other than where the false representations were made. Restatement (Second) 

of Conflict of Laws, § 148 (1971). Where, as here, two or more states are involved, the Restatement 

provides:

When the plaintiff's action in reliance took place in whole or in part 

in a state other than that where the false representations were made, 

the forum will consider such of the following contacts, among 

others, as may be present in the particular case in determining the 

state which, with respect to the particular issue, has the most 

significant relationship to the occurrence and the parties:

(a) the place, or places, where the plaintiff acted in reliance upon the 

defendants' representations,

(b) the place where the plaintiff received the representations,

(c) the place where the defendant made the representations,

(d) the domicile, residence, nationality, place of incorporation and 

place of business of the parties,

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(e) the place where a tangible thing which is the subject of the 

transaction between the parties was situated at the time, and

(f) the place where the plaintiff is to render performance under the 

contract which he has been induced to enter by the false 

representations of the defendant.

Id., § 148(2). This test is applied “on an issue-by-issue basis” and “is qualitative, not quantitative.” 

Camp Jaycee, 197 N.J at 143. Moreover, courts are to evaluate these contacts in light of the 

principles stated in § 6:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative 

interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6; see id. § 148 cmt. b. “Reduced to their essence, the 

§ 6 principles are: ‘(1) the interests of interstate comity; (2) the interests of the parties; (3) the 

interests underlying the field of tort law; (4) the interests of judicial administration; and (5) the 

competing interests of the states.’ ” Camp Jaycee, 197 N.J. at 147 (quoting Erny v. Estate of 

Merola, 171 N.J. 86 (2002)).

The parties do not dispute that a conflict exists between the NJCFA and the consumer fraud 

statutes of Illinois and California. Indeed, “[c]ourts have recognized that significant conflicts exist 

between the NJCFA and the consumer protection statutes of other states.” In re Mercedes–Benz 

Tele Aid Contract Litig., 257 F.R.D. 46, 63 (D.N.J.2009) (quotation omitted); see Fink v. Ricoh 

Corp., 365 N.J. Super. 520, 570 (App. Div. 2003) (“A review of the consumer fraud statutes of 

the various states, and the cases decided thereunder demonstrates the existence of numerous actual 

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conflicts on various issues between provisions of the NJCFA and those of the statutes enacted by 

other states.”).3 The parties do, however, dispute which state has the most significant relationship 

to Plaintiffs’ consumer fraud claims.

Plaintiffs argue that New Jersey has the most significant relationship to their consumer 

fraud claims because the false representations that Bayer allegedly made regarding Phillips’ Colon 

Health, including those false representations contained in its marketing plan for Phillips’ Colon 

Health, emanated from Bayer’s headquarters in Morristown, New Jersey. (Pl. Opp’n Br. at 3). 

Defendant argues, on the other hand, that consideration of the relevant factors favors application 

of Illinois and/or California law because the location of Bayer’s headquarters and/or the location 

from which it arguably made the false representations at issue are insufficient to overcome 

application of the law of the states where Plaintiffs reside and purchased the products in question. 

(Def. Br. at 7). 

 

3 The NJCFA does not require a showing of reliance, whereas California’s consumer protection 

laws do. Compare Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 

Inc., 192 N.J. 372, 391 (2007) (“Our CFA does not require proof that a consumer has actually 

relied on a prohibited act in order to recover.”) with In re Tobacco II Cases, 46 Cal.4th 298, 328, 

93 Cal.Rptr.3d 559 (Cal. 2009) (“Accordingly, we conclude that a plaintiff must plead and prove 

actual reliance to satisfy the standing requirement of section 17204....”). Moreover, under the 

NJCFA, treble damages and a jury trial are available. See N.J.S. A. § 56:8–19 (“In any action 

under this section the court shall ... award threefold the damages sustained by any person in 

interest.”); Fink v. Ricoh Corp., 365 N.J. Super. 520, 573 (Law Div. 2003) (noting that “parties 

to a consumer fraud case [in New Jersey are] entitled to a trial by jury”). On the other hand, 

under Illinois law, there is no provision for treble damages; the ICFA is aimed primarily at 

compensating for actual damages. See 815 Ill. Comp. Stat. Ann. 505/10a(a) (“The court, in its 

discretion may award actual economic damages or any other relief which the court deems proper 

....”). Additionally, as the New Jersey Law Division acknowledged in Fink, the Illinois statute 

does not provide a right to a jury trial. Fink, 365 N.J. Super. at 573 (citing Martin v. Heinold, 

Commodities, Inc., 163 Ill.2d 33, 205 Ill.Dec. 443, 643 N.E.2d 734 (Ill. 1994)). Therefore, the 

Court concludes that there is an actual conflict between the NJCFA, the CLRA and the ICFA and 

will proceed to the second step of the significant relationship analysis.

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Of the factors provided in § 148(2), only factor (c) clearly points to New Jersey. There 

appears to be no dispute that the Bayer made the relevant representations regarding Phillips’ Colon 

Health at its office in Morristown, New Jersey. Factors (a) and (b), the place where the putative 

class members received Bayer’s representations and the place where the consumers acted in 

reliance upon those representations, both point to the individual states where the product was 

purchased. Plaintiffs clearly allege that consumers purchased Phillips’ Colon Health at retail 

locations nationwide, not from Bayer itself. Factor (d), the domicile, residence, nationality, place 

of incorporation, and place of business of the parties, does not point directly to any particular state, 

as the named Plaintiffs reside in Illinois and California, and Bayer is alleged to have done business 

in New Jersey.4 Factors (e) and (f), “the place where a tangible thing which is the subject of the 

transaction between the parties was situated at the time” and “the place where the plaintiff is to 

render performance under a contract which he has been induced to enter by the false 

representations of the defendant,” point to the state of purchase, as the “transaction” or “contract” 

between the consumer and Bayer cannot be said to have been consummated until the product was 

accessed and purchased by the consumer.

In sum, factors (a), (b), (e), (f), and, to a limited extent, factor (d), point to the states of 

purchase, while only factor (c) points to New Jersey. However, the Court may not simply count 

up the § 148(2) contacts and apply the law of the jurisdiction with the greater tally. See David B. 

Lilly Co., Inc. v. Fisher, 18 F.3d 1112, 1119 (3d Cir. 1994). Instead, the Court must examine the 

 

4 Moreover, in cases of pecuniary loss, “[t]he domicil, residence and place of business of the 

plaintiff are more important than are similar contacts on the part of the defendant” because 

“financial loss will usually be of greatest concern to the state with which the person suffering the 

loss has the closest relationship.” See § 148 cmt. i.

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§ 148(2) contacts in light of the principles stated in § 6, while considering “whether some other 

state has a greater interest in the determination of the particular issue than the state selected on the 

basis of the [§ 148(2) ] contacts.” Restatement (Second) of Conflict of Laws § 148 cmt. b. “The 

extent of the interest of each of the potentially interested states should be determined on the basis, 

among other things, of the purpose sought to be achieved by their relevant local law rules and of 

the particular issue involved.” Id. 

Here, the NJCFA serves both a compensatory and deterrent function. See Cox v. Sears 

Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 463 (N.J.1994) (“Although one purpose of the 

legislation is clearly remedial in that it seeks to compensate a victim's loss, the [NJCFA] also 

punishes the wrongdoer by awarding a victim treble damages, attorneys' fees, filing fees, and 

costs.”). As Bayer’s alleged misrepresentations occurred in New Jersey, application of the NJCFA 

here would further the legislative goal of deterring wrongful conduct within the state. 

Furthermore, it has been noted that “[a] number of states, including Maine, Oklahoma, and West 

Virginia, limit recovery or do not allow for punitive damages in consumer fraud actions,” while 

other states, “such as Connecticut, Delaware, Kentucky, and Oregon, place no limits on the 

punitive damages available in consumer fraud actions.” Mercedes–Benz, 257 F.R.D. at 64 n. 7, n. 

8. This suggests that if the NJCFA were not applied to certain out-of-state consumers, a company 

based in New Jersey could potentially defraud those consumers but escape the imposition of 

punitive damages.

As this Court has previously held, however, to apply the NJCFA to the out-of-state 

consumers in this case would be to ignore the compensatory interests of Illinois and California. 

Simply because New Jersey has struck a particular balance between consumer protection and the 

promotion of business within its borders does not suggest that its interest in deterrence should 

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displace the policy goals of its fellow states. Those states have instead struck their own legislative 

balances, awarding compensation based on differing standards of, inter alia, intent, causation, 

reliance, and damages. See Fink, 839 A.2d at 974–83 (performing a thorough review of the relevant 

statutes). Here, the named Plaintiffs are alleged to have purchased Phillips’ Colon Health at local 

retailers in Illinois and California. The named Plaintiffs in this case are not alleged to have had 

any direct involvement with Bayer in New Jersey; rather, they transacted only with third parties 

located in other states (Illinois and California). Plaintiffs’ claims thus have substantial contacts 

with the states where the Phillips’ Colon Health products were purchased, and application of those

states’ consumer protection laws would further their interest in compensating purchasers for harms 

they may have suffered. New Jersey, by contrast, has no interest in compensating out-of-state 

consumers and has contacts with this litigation only by way of the location of Bayer’s headquarters. 

The Court thus sees little reason to conclude that New Jersey’s deterrent interest with respect to 

one party should be elevated above its fellow states’ compensatory interests with respect to the 

other parties. Indeed, the “interests of interstate comity” and the “competing interests of the states” 

counsel against the blanket application of one state’s law over the laws of other interested states. 

Finally, while the other principles provided under § 6 and in Camp Jaycee, such as the interests of 

judicial administration and efficiency, are surely applicable here, they “must yield to strong state 

interests implicated by the remaining factors.” Fu v. Fu, 160 N.J. 108, 733 A.2d 1133, 1142 

(N.J.1999); see Chin v. Chrysler Corp., 182 F.R.D. 448, 457 (D.N.J.1998) (“While it might be 

desirable for the sake of efficiency to settle upon one state, such as New Jersey, and apply its law 

in lieu of the other 49 jurisdictions, due process requires individual consideration of the choice of 

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law issues raised by each class members case before certification.”).5 Thus, analyzing the contacts 

found under § 148 in light the principles of § 6, the Court concludes that the states where the named 

Plaintiffs purchased Phillips’ Colon Health have the most significant relationship to Plaintiffs’

consumer fraud claims.6 See Maniscalco v. Brother Intern. (USA) Corp., 709 F.3d 202, 208 -209 

(3d Cir. 2013) (“Accepting Huryk’s premise that there were actionable omissions by BIC at its 

headquarters in New Jersey, we conclude that this single contact—factor (c)—does not warrant 

applying New Jersey law. Nothing else about the relationship between the parties, other than the 

fortuitous location of BIC's headquarters, took place in the state of New Jersey. Huryk’s home 

state, in which he received and relied on BIC's alleged fraud, has the ‘most significant relationship’

to his consumer fraud claim.”); see, e.g., Gray v. Bayer, Civil Action No. 08-4716, 2011 WL 

2975768, at * 4-6 (D.N.J. July 21, 2011). Defendant’s motion to dismiss Plaintiffs’ NJCFA claim

(Count One) is therefore granted.

2. California and Illinois Consumer Protection Statutes

Defendant moves to dismiss Counts Two, Three and Four (which contain consumer fraud 

claims under California and Illinois law) on the basis that Plaintiffs’ “lack of substantiation” theory 

cannot support a cognizable cause of action under Illinois or California law. In particular, 

 

5 The “interests of the parties” are of no moment here, because while this factor “is of extreme 

importance in the field of contracts,” it “ordinarily plays little or no part in a choice-of-law 

question in the field of torts.” Fu, 733 A.2d at 1141.

6 This Court’s conclusion is supported by the authors’ commentary to § 148(2): “If any two of 

the [148(2)] contacts, apart from the defendant’s domicil, state of incorporation or place of 

business, are located wholly in a single state, this will usually be the state of the applicable law 

with respect to most issues.” Maniscalco, 709 F.3d at 209. Here, for example, Plaintiff 

Yuncker’s receipt of and reliance on Bayer’s alleged misrepresentations and the location of the 

sale of the Phillips’ Colon Health product all took place in Illinois, thus suggesting that the § 

148(2) factors weigh in favor of applying Illinois law to his claims. 

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Defendant maintains that Plaintiffs must allege—and ultimately prove—actual falsity in order to 

sustain a viable claim for violation of the California and Illinois consumer protection statutes. 

Count Two alleges violation of the Consumers Legal Remedies Act, California Civil Code 

§ 1750, et. seq. (“CLRA”). Count Three alleges false or deceptive advertising in violation of 

California Business and Professions Code, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”). “In 

an action for false advertising under the UCL and CLRA, the plaintiff ‘bears the burden of proving 

the defendant's advertising claim is false or misleading.’ ” Stanley v. Bayer Healthcare LLC, 2012 

WL 1132920, at *3 (S.D. Cal. April 3, 2012) (quoting National Council Against Health Fraud, 

Inc. v. King Bio Pharmaceuticals, Inc., 107 Cal.App. 4th 1336, 1342 (2003)). In other words, “to 

successfully allege a claim for false advertising [under California law], Plaintiff has the burden to 

plead and prove facts that show that the claims that Defendant made in connection with product 

are false or misleading.” Fraker v. Bayer Corp., 2009 WL 5865687, at *8 (E.D. Cal. 2009). 

“Private individuals may not bring an action demanding substantiation for advertising claims. 

Instead, pursuant to Cal. Bus. & Prof.Code § 17508, only prosecuting authorities may require an 

advertiser to substantiate its advertising claims.” Stanley, 2012 WL 1132920, at *3.

Count Four alleges violation of the Illinois Consumer Fraud Act, 815 ILCS 505/1, et seq.

(“ICFA”). “To establish a violation of the [Illinois] CFA’s prohibition on deceptive acts or 

practices, a plaintiff must prove that: (1) the defendant engaged in a deceptive act or practice; (2) 

the defendant intended that the plaintiff rely on the act or practice; and (3) the act or practice 

occurred in the course of conduct involving a trade or commerce.” Bober v. Glaxo Wellcome PLC, 

246 F.3d 934, 938 (7th Cir. 2001) (citations omitted). Only the first of these requirements is at 

issue in Defendant’s motion. 

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Although the Court agrees with Defendant that a lack of substantiation theory, without 

more, will not state a viable claim for violation of the CLRA, the UCL or the ICF, the Court finds 

that the Amended Complaint alleges sufficient facts from several scientific sources which, if 

accepted as true, allow the Court to draw the reasonable inference that certain representations made 

by Bayer—that Phillips’ Colon Health contains “3 strains of good bacteria to promote overall 

digestive health,” and “help[] defend against occasional: constipation, diarrhea, [and] gas and 

bloating”—are false or, at a minimum, misleading. For example, as stated above, the Amended 

Complaint alleges that, in July 2009, the European Food Safety Authority (“EFSA”) reviewed the 

scientific proof in relation to lactobacillus gasseri—one of the strains of bacteria contained in 

Phillips’ Colon Health—and concluded that the data available do not demonstrate a cause and 

effect relationship between consuming the bacteria and improvement of intestinal transit within 

the normal range. (Am. Compl., ¶ 37). The Amended Complaint also alleges that the EFSA 

analyzed and reviewed the studies regarding the two other strains in Phillips’ Colon Health

(bifidobacterium bifidum and bifidobacterium longum) and concluded, in a 2009 scientific opinion, 

that a cause and effect relationship has not been established between the consumption of the 

combination of bifidobacterium bifidum, bifidobacterium breve, bifidobacterium infantis, 

bifidobacterium longum, and decreasing potentially pathogenic intestinal microorganisms in 

infants and children aged between 0 and 36 months. (Am. Compl., ¶ 38). The Amended Complaint 

goes on to refer to a 2008 study wherein the EFSA reviewed scientific studies for a claim that 

consuming a bacterial powder containing bifidobacterium longum and two other strains 

“improve[s] the general immunity by maintaining the microbiological balance” and concluded that 

the one unpublished in vitro study it was provided did not establish the claimed immune system 

improvement. (Id., ¶ 39). The Amended Complaint also refers to a 2012 scientific opinion 

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published by the EFSA based on a review of purported proof for claims that consumption of the 

combination of the same three bacteria strains in Phillips Colon Health provides defenses against 

unhealthy bacteria in the general adult population. There, the EFSA concluded that no cause and 

effect relationship has been demonstrated for the consumption of the three bacteria in 

Phillips Colon Health and the maintenance of defenses against pathogenic bacteria. (Am. 

Compl., ¶ 41) (emphasis added). Such scientific studies, accepted as true for purposes of this 

motion, allow the Court to draw the reasonable inference that the combination of the three strains 

of bacteria contained in Phillips’ Colon Health does not deliver the digestive health benefits that 

Bayer claims it does. Whether or not Plaintiffs will ultimately be able to prove that Bayer’s 

statements are actually false remains to be seen and is certainly not at issue on a motion to dismiss. 

See generally Iqbal, 556 U.S. at 678 (“To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”) 

(quoting Twombly, 550 U.S. at 570). Defendant’s motion to dismiss Plaintiffs’ CLRA, UCL and/or 

ICF claims is therefore denied. 

B. Common Law Claims

Defendant moves to dismiss Plaintiffs’ common law claims of breach of the implied 

warranty of merchantability and unjust enrichment on two grounds: (1) for the same reasons that 

Plaintiffs’ lack of substantiation theory is not cognizable under the relevant consumer fraud 

statutes, it is also not cognizable under common law theories of breach of implied warranty of 

merchantability and unjust enrichment; and (2) failure to state a claim. Having already determined 

that Plaintiffs’ consumer fraud claims are premised on more than a mere lack of substantiation 

theory—but rather, on scientific studies suggesting that the combination of the strains of bacteria 

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contained in Phillips’ Colon Health do not deliver the health benefits that Bayer claims it does—

the Court rejects the first argument in support of dismissal of Plaintiffs’ common law claims.

1. Breach of Implied Warranty of Merchantability

Defendant moves to dismiss this claim on the basis that: (a) Illinois law applies to 

Plaintiffs’ breach of implied warranty of merchantability claims, and (b) Illinois requires privity 

of contract to recover economic damages for breach of implied warranty of merchantability. 

Plaintiffs oppose this aspect of Defendant’s motion on the basis that Defendant’s choice of law 

analysis is flawed and, as such, Illinois law does not necessarily apply to each of the named 

Plaintiffs’ implied warranty claims; and (b) in any event, Illinois law has carved out an exception 

to its privity requirement for consumable products. 

The Court begins its analysis by noting that Defendant’s choice of law analysis as to this 

claim is incomplete. As Plaintiffs correctly note, Defendant relies on § 148 of the Restatement in 

arguing that Illinois has the most significant relationship with Plaintiffs’ claims. Although courts 

look to § 148 in assessing which state’s law should apply to fraud claims, since breach of implied 

warranty claims sound in contract, courts instead look to § 188 of the Restatement to determine 

which state’s law applies to such claims. See Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass’n 

Ins. Co., 134 N.J. 96, 102 (1993). Defendant did not engage in a choice of law analysis pursuant 

to § 188 of the Restatement in its moving brief. The Court declines to consider the parties’ related 

arguments—including whether Illinois law or California law (or both) should apply to Plaintiff 

Rikos’s breach of implied warranty of merchantability claim(s)—in the abstract and thus declines 

to engage in a choice of law analysis as to this claim at this time. Because the parties agree, 

however, that Illinois law should apply to Plaintiff Yuncker’s breach of implied warranty of 

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merchantability claim, the Court will, for purposes of judicial economy, assess whether the 

Amended Complaint states a facially plausible claim for breach of the implied warranty of 

merchantability under Illinois law. 

“Under the law of Illinois, privity of contract is a prerequisite to recover economic damages 

for breach of implied warranty.” Voelker v. Porsche Cars North America, Inc., 353 F.3d 516, 525 

(7th Cir. 2003) (citing Rothe v. Maloney Cadillac, Inc., 119 Ill.2d 288, 116 Ill.Dec. 207, 518 

N.E.2d 1028, 1029–30 (1988)); Jensen v. Bayer AG, 371 Ill. App. 3d 682, 690-691(Ill. App. 1 

Dist. 2007) (“In order for a plaintiff to file a claim for economic damages under the Uniform 

Commercial Code (UCC)(810 ILCS 5/1–101 et seq. for the breach of an implied warranty, he or 

she must be in vertical privity of contract with the seller.”). Thus, as a general matter, under Illinois 

law, Plaintiffs would only have a cause of action for breach of implied warranty of merchantability 

against the entity from which they purchased Phillips’ Colon Health. The Amended Complaint 

acknowledges that each of the named Plaintiffs purchased Phillips’ Colon Health directly from a 

pharmacy—not from Bayer. See, e.g., Am. Compl., ¶¶ 11, 12. “Although a plaintiff may be 

excepted from the privity requirement [under Illinois law] by suing for personal injury,”7 Plaintiffs 

have not brought an action for personal injury. Jensen, 371 Ill. App. 3d at 691. To the contrary, 

 

7 The Court has reviewed the sole case relied on by Plaintiffs in support of the position that 

Illinois courts have carved out an exception to the privity requirement for breach of implied 

warranty of merchantability claims involving food products and finds same to be distinguishable 

from the case at hand inasmuch as Plaintiffs in this case do not allege personal injury and instead 

sue Bayer for purely economic loss. See Warren v. Coca-Cola Bottling Co. of Chicago, 166 Ill.

App. 3d 566, 568-569, 519 N.E.2d 1197 (Ill. App. 1st Dist. 1988) (involving claims of strict 

liability, negligence, and breach of implied warranties where “plaintiff became ill after drinking 

from a can of Coca-Cola purchased at Litt's Cut Rate, a drug store”). By comparison, the Court 

finds that the facts of this case more closely resemble the facts in Jensen, 371 Ill. App. 3d at 691, 

where the Appellate Court of Illinois affirmed the dismissal of a breach of implied warranty of 

merchantability claim brought by a consumer of a cholesterol drug where the consumer was 

suing the manufacturer—and not the pharmacy where he bought the product—for purely 

economic loss. 

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the Amended Complaint makes clear that Plaintiffs are suing for purely economic loss. See Am. 

Compl., ¶¶ 11 (“Plaintiff Yuncker is not claiming physical harm or seeking the recovery of 

personal injury damages”); ¶ 12. Thus, to the extent Plaintiffs have intended to assert claims of 

breach of the warranty of merchantability under Illinois law, they were required to allege facts 

establishing privity. Not only have Plaintiffs failed to do so, but it is clear that cannot do so given 

their concession that the products at issue were not purchased directly from Bayer. Thus, to the 

extent that Illinois law applies to Plaintiffs’ breach of implied warranty of merchantability claim, 

such claim must be dismissed. See, e.g., Jensen, 371 Ill. App. 3d at 691 (affirming dismissal of 

breach of implied warranty claim brought by consumer of cholesterol drug where said consumer 

was suing manufacturer—and not the pharmacy where he bought the product—for purely 

economic loss). 

2. Unjust Enrichment 

Defendant moves to dismiss Plaintiffs’ unjust enrichment claims on the following grounds: 

(1) Illinois law should apply to Plaintiffs’ unjust enrichment claims, (2) under Illinois law, if an 

unjust enrichment claim is premised on the same underlying conduct that forms the basis of a claim 

sounding in contract, tort or statute, then the unjust enrichment claim will rise or fall with the 

related claim, and (3) because Plaintiffs cannot state a consumer fraud or breach of implied 

warranty claim, their claim of unjust enrichment under Illinois law fails for the same reasons. 

The Court begins by noting that Defendant’s choice-of-law analysis as to this claim is 

incomplete. As Plaintiff correctly points out, Defendant provides no legal argument in support of 

the notion that the court’s consideration of the factors set forth in § 221 of the Restatement should 

weigh in favor of applying Illinois law to Plaintiffs’ unjust enrichment claims. Instead, Defendant 

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relies on its argument vis-à-vis § 148(2) of the Restatement which, as stated above, governs claims 

sounding in fraud. Moreover, the parties’ briefing on the issue of whether or not an actual conflict 

of law exists as to this claim is also inadequate. For example, although Defendant points to several 

alleged conflicts of law in their moving brief (Def. Br. at 15-16), Plaintiffs make a passing 

reference—in a footnote—that no actual conflict exists without directly addressing the alleged 

conflicts referred to in Defendant’s brief. See Pl. Opp’n Br. at 23 n. 8. In light of the foregoing, 

the Court declines to engage in a choice-of-law analysis as to this claim at this time. 

Even assuming, arguendo, that Illinois law should apply to this claim (as Defendant 

suggests), and that claims of unjust enrichment under Illinois law rise or fall with their related 

contract or tort claims,8 Defendant’s motion to dismiss this claim would in any event be denied 

inasmuch as the Court has determined that Plaintiffs have adequately alleged claims for violation 

of California and Illinois consumer protection statutes. Defendant’s motion to dismiss this claim—

on the basis that it rises or falls with the related consumer fraud claims9—is therefore denied.

 

8 To be clear, the Court makes no such finding. See generally Peddinghaus v. Peddinghaus, 295 

Ill. App. 3d 943, 949 (Ill. App. 1 Dist. 1998) (“Our supreme court has expressly held that to 

‘state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the 

defendant has unjustly retained a benefit to the plaintiff's detriment, and that defendant's 

retention of the benefit violates the fundamental principles of justice, equity, and good 

conscience.’ ”) (citing HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill.2d 

145, 160 (1989)).

9 Defendant does not argue that Plaintiffs’ unjust enrichment claim is otherwise deficient.

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IV. CONCLUSION

For the reasons set forth above, Defendant’s motion to dismiss is granted in part and 

denied in part. In particular, Defendant’s motion to dismiss Count One is granted; Count One is 

dismissed with prejudice. Defendant’s motion to dismiss Counts Two, Three, Four, Five10 and Six 

is denied. 

An appropriate Order accompanies this Opinion. 

s/ Jose L. Linares

JOSE L. LINARES

U.S. DISTRICT JUDGE

Date: November 6, 2014

 

10 Although the Court held that the Amended Complaint fails to state a viable claim for breach of 

implied warranty of merchantability under Illinois law, the Court declined to rule on the issue of 

which state’s law would apply to Plaintiffs’ breach of implied warranty of merchantability claim 

at this time. The parties are free to reassert their choice-of-law arguments in future motion 

practice. 

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