Gerber Can’t Escape Baby Formula False Advertising Class Action

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Gerber Products Co. won’t be able to escape a class action lawsuit, alleging that the company falsely advertised a baby formula product, a California federal judge has ruled.

Gerber wanted the claims in the class action lawsuit to be deferred to the U.S. Food and Drug Administration (FDA) under what’s called the primary jurisdiction doctrine, but U.S. District Judge John A. Kronstadt disagreed.

“The primary jurisdiction doctrine does not warrant the stay or dismissal of plaintiff’s claims,” Judge Kronstadt wrote. “Plaintiff raises neither an issue of first impression nor a complex one. Instead, her claims turn on whether defendant’s representations concerning the health benefits of Good Start Gentle and the FDA’s approval of the formula were false or misleading.”

Plaintiff Oula Zakaria said in her Gerber class action lawsuit that the baby food company falsely advertised its Good Start Gentle baby formula as having the ability to help prevent babies from developing allergies.

Gerber told the California federal judge that he should dismiss the class action lawsuit on the grounds that Zakaria didn’t see the advertisements that she cites in her lawsuit, and she also didn’t tie her own experiences to scrutiny the company is facing by the FDA and the Federal Trade Commission.

But, Judge Kronstadt said that Zakaria’s Gerber baby formula class action lawsuit can stand without references to the FDA and FTC.

“Even if the references to the FDA and FTC proceedings and the advertisements not personally seen by plaintiff were removed from the FAC, it would still be sufficient,” he wrote.

“Thus, it would adequately allege a sequence of events in which defendant made misrepresentations about the health benefits of, and FDA support for, Good Start Gentle, as well as plaintiff’s reliance on them when she decided to purchase defendant’s product instead of alternatives,” the federal judge added.

The Gerber class action lawsuit was filed in January. Zakaria charged Gerber with violating California’s Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and other allegations.

Zakaria is looking to represent a class of “all persons who have purchased Gerber Good Start Gentle infant formula in California during the applicable statute of limitations.”

In October 2014, the FTC filed a lawsuit against Gerber alleging that Gerber “has falsely, misleadingly, or without substantiation represented that ‘feeding Gerber Good Start Gentle formula to infants with a family history of allergies prevents or reduces the risk that they will develop allergies.”

In addition, the FTC lawsuit said that Gerber misrepresented that its claims were approved by the FDA.

Following the FTC lawsuit, the FDA sent a warning letter to Gerber over its marketing and branding of Good Start Gentle.

“It states that Good Start Gentle was misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (FDCA),” Judge Kronstadt wrote.

“The Warning Letter also states that the claims on Defendant’s product label and website ‘asserting the limited evidence linking the benefit between consumption of ‘100% whey partially hydrolyzed’ and atopic dermatitis are generally consistent with the claims suggested in the 2011 letter announcing the claims for which FDA would consider the exercise of enforcement discretion,” the California federal judge added.

From 2005 through 2011, the FDA had rejected claims that Gerber had submitted for approval that linked Good Start Gentle’s use of 100 percent partially hydrolyzed whey protein to the prevention of food allergies. However, the federal agency did say in 2011 that there was sufficient evidence to be able to consider a claim that the whey protein used in the baby formula could reduce the risk of atopic dermatitis, commonly known as eczema.

Zakaria is represented by Daniel L. Keller and Dan C. Bolton of Keller Fishback & Jackson LLP and Paul V. Sweeny and Stephen J. Fearon Jr. of Squitieri & Fearon LLP.

Gerber is represented by Geoffrey W. Castello, Kenneth David Kronstadt and Andrew M. White of Kelley Drye & Warren LLP.

The Gerber Good Start Gentle Class Action Lawsuit is Oula Zakaria v. Gerber Products Co., Case No. 2:15-cv-00200, in the U.S. District Court for the Central District of California.