Analysis: The details of Dannon's probiotic settlement

21-Sep-2009 - Last updated on 24-Sep-2009 at 18:12 GMT

Dannon’s out-of-court settlement of the $300m class action mounted against it the beginning of last year contains some interesting clauses such as the fact Dannon has only committed to altering its on-pack immunity marketing for three years.

Dannon will be hoping in that period it can gather enough science to reinstate the claim.

The settlement saw the world’s leading probiotics player set up a $35m fund to pay off disgruntled consumers who can claim varying amounts up to $100 depending on the type of evidence they can produce of consuming Dannon probiotic products and not being satisfied with the results.

The settlement places detailed parameters around the manner in which Dannon can market its products, leading to Dannon’s commitment to remove the word “immunity” from the front-of-pack marketing of probiotic drink, DanActive.

It has also committed to change other wording on the product as well as messaging for gut health spoonable yoghurt, Acitvia.

The probiotic strains would have to be highlighted in their original latin names as well as commercial title they possess such as L. casei Immunitas in DanActive and Bifidus Regularis in Activia.

These references must be made close to the Food and Drug Administration required nutritional label.

Dannon has agreed to amend on-product wording for DanActive from, “a positive effect on your digestive tract’s immune system” to “interact with your digestive tract’s immune system”.

Further detail

Both Activia DanActive products must contain the phrase: “Activia[or, e.g., ActiviaLight] is a food product and not a treatment or cure for any medical disorder or disease. If you have any concerns about your digestive system, you should consult a healthcare professional.”

For Activia, Dannon can state that Activia is “scientifically proven” or “clinically proven” to help regulate the digestive system but a disclaimer must accompany it stating it can help with slow intestinal transit when eaten daily for two weeks, as part of a balanced diet and healthy lifestyle.

The qualifier should appear on the back of the product or over-wrap or on websites, in medical marketing materials and in television commercials.

“In existing television commercials where the qualifying language currently exists, the qualifying language shall be made materially more prominent,” the settlement reads.

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