Gerber Falsely Advertises Anti-Allergy Formula, Class Action Lawsuit Alleges

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On Monday, Gerber Products Co. was hit with a class action lawsuit alleging it misleads consumers by claiming its infant formula can reduce a baby’s chances of developing allergies. The Gerber class action lawsuit was filed days after the Federal Trade Commission filed a lawsuit with similar allegations against the baby products company.

According to the false advertising class action lawsuit, Gerber misleads consumers about the benefits of its Good Start Gentle formula and charges a premium price for the product because it contains partially hydrolyzed whey protein. Gerber claims that because this whey protein is easier to digest than cow’s milk, it will reduce the likelihood that a baby with a family history of allergies will also develop allergies. The product reportedly costs about $24 for 23.2 ounces of the powdered formula.

Plaintiff Constance Werthe filed the Gerber class action lawsuit on behalf of herself and other individuals who purchased Good Start Gentle formula since Jan. 1, 2011. She alleges that, as a result of Gerber’s deceptive marketing and labeling claims, she purchased the Gerber Good Start Gentle Formula at a premium price. According to the false advertising class action lawsuit, Werthe would not have paid as much for the product, or would not have purchased it at all, if not for Gerber’s allegedly deceptive representations.

“Since at least 2011, Gerber has manufactured, advertised, labeled, offered for sale, distributed, and sold Gerber Good Start Gentle infant formula to the public,” the false advertising class action lawsuit alleges. “Gerber has advertised this infant formula through television commercials, magazine ads, point-of-sale displays, product packaging, online ads, and other advertising and promotional materials. Gerber has represented, among other things, that Gerber Good Start Gentle prevents or reduces the risk of developing allergies.”

According to the Gerber class action lawsuit, the U.S. Food and Drug Administration (FDA) in 2006 denied Gerber’s request to publicly advertise that its formula could reduce an infant’s risk of developing allergies, finding there was “no credible” to support a connection between the partially hydrolyzed whey protein and a reduced risk of food allergies in infants. Three years later, the federal agency also denied Gerber’s request to include a qualified health claim indicating the formula may reduce the risk of atopic dermatitis, finding there was “little scientific evidence for the relationship.”

Despite these rejections by the FDA, Werthe points to a number of allegedly misleading advertisements, including a print ad with a picture of a canister of the formula that states, “Gerber Good Start is the first and only formula brand made from 100% whey protein partially hydrolyzed, and that meets the criteria for a FDA Qualified Health Claim for atopic dermatitis.”

The false advertising class action lawsuit accuses Gerber of violating the Arizona Consumer Fraud Act as well as breach of express warranty and unjust enrichment. She seeks statutory damages, restitution, disgorgement of profits and injunctive relief.

Werthe is represented by Elaine Ryan, Patricia Syverson and Lindsey M. Gomez-Gray of Bonnett Fairbourn Friedman & Balint PC and Fred T. Isquith, Theodore B. Bell, Carl V. Malmstrom and Janine Pollack of Wolf Hadelstein Adler Freeman & Herz LLP.

The Gerber Anti-Allergy Formula Class Action Lawsuit is Werthe v. Gerber Products Co., Case No. 3:14-cv-08216, in the U.S. District Court for the District of Arizona.