Judge Dismisses Gerber Probiotic False Ad Class Action Lawsuit

A New Jersey federal judge has dismissed a proposed class action lawsuit that claimed Gerber Products Co. falsely advertised its baby probiotics, finding that the plaintiffs have standing to challenge only the product labeling.

The five consolidated class action lawsuits alleged Gerber’s Good Start Protect Infant Formula, Good Start Protect Formula for 9 through 24 Months and DHA & Probiotic Cereal Single Grain Oatmeal and Rice products do not deliver the promised health benefits. Specifically, they argue, the products do not benefit the immune system and are not equal to breast milk. The plaintiffs claim that they made the decision to purchase the products based on Gerber’s false and misleading claims that the products were healthier than products made by their competitors

In the Gerber Good Start class action lawsuits, the plaintiffs allege that Gerber’s marketing strategy includes “IMMUNIPROTECT,” with a trademarked probiotic, as a “deceptive marketing hook.” Gerber touts the “advanced” immune system benefits associated with the probiotic, which is based on a probiotic found in breast milk. The plaintiffs also accuse Gerber of claiming its probiotic products “possess nutritional qualities that are nearly equivalent to those of breast milk.” They argue that this statement is refuted by scientific evidence that show breast milk provides unique nutritional benefits that are not replicated by Gerber’s probiotic products.

U.S. District Judge Jose Linares said in an August 23 ruling that none of the plaintiffs clarified which specific advertisements they relied on when making the decision to purchase Gerber’s probiotic products, other than the products’ label.

While the amended Gerber Good Start class action lawsuit makes reference to a number of advertisements, including television commercials, Gerber’s website and press releases, “no Plaintiff alleges even the general type or medium of ‘advertising’ to which they were allegedly exposed. Nor do Plaintiffs otherwise allege facts as to how misrepresentations in the ‘advertising’ caused their injuries,” Judge Linares said in his order granting Gerber’s motion to dismiss the class action lawsuit. Therefore, the plaintiffs do not have standing to bring a claim against Gerber.

Judge Linares also said that the plaintiffs’ claims related to the product labels were vague. In their class action lawsuit, the plaintiffs “point to concrete examples of misleading statements from press releases and the website.” They also refer to Gerber’s “misrepresentations” without identifying the source. While they claim they would not have purchased the products if not for these misrepresentations, they fail to clarify exactly which advertisements and statements they relied on when making their purchase. Because the plaintiffs’ class action lawsuit was premised on the company’s overall marketing campaign, Judge Linares clarifies that he “cannot determine whether Plaintiffs state a plausible right to relief based on the representation of the Products’ labels alone.”

The plaintiffs are represented by James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC, Blood Hurst & O’Reardon LLP, Bursor & Fisher PA, Complex Litigation Group LLC, Scott & Scott LLP, Faruqi & Faruqi LLP and Law Offices of Ronald A. Marron.

The Gerber Good Start Class Action Lawsuit is In Re: Gerber Probiotic Sales Practices Litigation, Case No. 2:12-cv-00835, in the U.S. District Court for the District of New Jersey.