(CN) — A federal judge tossed the bulk of a putative class action challenging the nutrient content of the company's "Happy Tot" and "Happy Baby" lines of product.
Plaintiffs Melissa Sanchez, Beverly Cassel and others brought the food labeling action against Nurture, complaining about “nutrient content” claims on 43 products intended for children under the age of two.
The challenged nutrient content claims are prominently displayed on defendant’s products and contain language such as “2g of Protein, 4g of Fiber and 350 mg Omega-3 from Chia ALA.”
The nutrient amounts reflected in the nutrition content claims match the information contained on the nutritional facts panel on the back of the products. Some products also advertise that additional nutrients were added, such as protein and choline, and “+ 1 1/3 tsp pea protein.”
The plaintiffs say that the nutrient content claims on defendant’s product “deceive and mislead reasonable consumers into believing that the products provide physical health benefits for their children when in fact, the products are harmful for children under two, both nutritionally and developmentally.”
U.S. District Judge Edward Davila had previously dismissed plaintiff Sanchez’s complaint with leave to amend, which has since been amended to add an additional plaintiff and new theories of fraud and deceptive labeling. Defendant Nurture moved again to dismiss the claims and the court heard oral arguments on April 27.
The first amended complaint cites three harmful effects of the products on young children. First, the plaintiffs say the products have high amounts of both added and free sugars. They also say that because many of defendant’s products are pureed, the raw ingredients are “stripped of insoluble fiber and the liver is no longer protected from the sugar in the food.” And third, they claim the long-term use of puree pouches may be detrimental to children because they prevent children from learning to chew and swallow soft foods, which in turn may lead to “delays in motor development” and “bad long-term snacking habits and routine overeating.”
The first amended complaint includes five claims for relief under California's Consumers Legal Remedies Act, Fair Advertising Law, and Unfair Competition Law, and common law fraud, deceit, and/or misrepresentation and unjust enrichment. Plaintiffs seek various damages, restitution, and injunctive relief. Nurture moved to dismiss all claims.
On Sept. 27, Davila granted the bulk of Nurture’s motion, with only a portion of the Unfair Competition Law claim surviving — and in tandem, unjust enrichment and the request for injunctive relief.
Specifically, Davila rejected Nurture's argument that California's Sherman Law is a mirror of federal law and therefore their claims under it are preempted by the U.S. Food and Drug Administration's labeling regulations. He noted while FDA regulations are also the food labeling regulations of California, Sherman Law allows the state to adopt additional labeling regulations and does not automatically accept federal additions or rescissions.
"These features of the Sherman Law indicate that it is more than a federal doppelganger and operates as an independent source of state law from the Food, Drug and Cosmetics Act, thereby avoiding federal preemption," Davila wrote.
He gave the plaintiffs 21 days to again amend what's left of their complaint.
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