Feb. 26, 2010 -- For two years Dannon has been touting Activia and DanActive yogurt products as "clinically" and "scientifically" proven to regulate digestion and boost immune systems. The company even launched a glossy TV ad campaign featuring actress Jamie Lee Curtis, who calls the yogurt "tasty."
Yet, despite the claims, a judge in Cleveland this week says Dannon must pay consumers up to $45 million in damages under the terms of a class action settlement, reached in federal court. The agreement also calls for Dannon to change its health claims for Activia and DanActive .
"This is victory for just about anyone who benefits from accuracy in food labeling," Cleveland lawyer John Climaco told ABC News.
Climaco and fellow attorney Frank Piscitelli Jr., joined with attorneys from California and Florida in winning the settlement, which was approved by U.S. District Judge Dan Polster.
"The judge agreed that the company was making claims it simply hadn't proven," says Climaco.
DanActive was introduced in January 2007. Activia has been sold nationwide since February 2006. No other Dannon products were involved in the court action.
Both yogurts sell at a 30 percent premium over other brands because they claim special bacterial ingredients that the company advertised as clinically proven to help strengthen immune systems and regulate digestion.
"This was a disingenuous advertising campaign that promised something that hasn't been proven," Dr. Roshini Rajapaksa,, a gastroenterologist, told ABC News.
Dannon's troubles first began two years ago after Trish Wiener, a Los Angeles caterer, filed a federal law suit, charging the company claims were false and duped the public into buying yogurt that was more expensive, but no better than the others on the shelf.
"I saw the ad on TV, and I went to the market specifically to buy it," Wiener, who suffers from stomach problems, told ABC News, "And there was absolutely no change whatsoever in my digestive system."
"Deceptive advertising has enabled Dannon to sell hundreds of millions of dollars worth of ordinary yogurt at inflated prices to responsible, health-conscious consumers," Wiener's attorney, Timothy Blood, says.
Dannon Stands by its Products
In a statement posted on a newly launched Web site called dannonsettlement.com,, Dannon defended its products and says it settled the lawsuit to "avoid the cost and distraction of litigation."
"The lawsuit claims the advertising was not true," the statement reads. "Dannon stands by its advertising and denies it did anything wrong."
Under terms of the settlement, Dannon,, a French food-products multinational based in Paris, must remove the words "clinically" and "scientifically proven" from product labels and advertisements of Activia yogurt in reference to claims the product helps to regulate the digestive system.
In their place, the words "clinical studies show," or something similar, must be substituted.
Dannon also must note that Activia and DanActive yogurts are food, not treatments or cures for any medical disorder or disease.
Also, Dannon must remove the word "immunity" from DanActive labels and ads, as well as include a qualifier to the claim the yogurt "helps strengthen your body's defenses" or "helps support the immune system."
"That is only true, the qualifier claims, "when eaten regularly as part of a balanced diet and healthy lifestyle," according to the order.
The new Web site answers consumer questions about how to receive up to a $100 rebate check. The deadline to apply for a refund is Oct. 1. The checks could arrive as soon as November.
Consumers could also call 888-418-6122.
Dannon says consumers could receive up to a $100 rebate check by applying online. The deadline to apply is Oct. 1.
For checks of $15 to $30, no receipt is necessary. Just fill out the claim form.
For claims of $30 to $100, receipts are required.
The size of the damage checks will depend on the number of claims that are filed. Any unclaimed money will be donated to charity.
In its ads for the yogurts Dannon claims the products use exclusive strains of what are known as probiotic bacteria.
People have known about and used probiotics for centuries, but they have recently gained special prominence in the lexicon of nutritional-health advocates. They are live microorganisms, usually bacteria, similar to the beneficial ones found in the human digestive system. In the right amounts, they "confer a health benefit on the host," according to the United Nations and the World Health Organization.
But medical experts disagree over what the right amounts are and what kind of benefits they could have, according to Dr. Rajapaksa, an assistant professor of medicine at New York University.
"Probiotic bacteria have only been proven to help with very specific disorders," she says. "Probiotics is an exciting field, but it is too early to make … general claims like 'regulates your digestive system.' That doesn't mean anything in medical terms."