Judge Spits Up Suit Over Gerber Baby Formula

     (CN) – Nestle subsidiary Gerber Products should not face claims that its pricey probiotic baby formula does not actually strengthen child immune systems, a federal judge ruled.
     By April 2012, Nestle and Gerber faced 10 nationwide class actions in six federal courts on this issue. Those cases were consolidated in Newark, N.J., earlier this year.
     The second consolidated amended complaint took issue with three Gerber products: Good Start Protect formulas for infants and for children up to age 2; and DHA & Probiotic Cereal, of the single grain oatmeal and rice varieties. Consumers claimed the products do not boost baby immune systems or equate breast milk, as advertised.
     Though healthy babies’ bodies already maintain the proper balance of intestinal bacteria, the Fremont, Mich.-based company allegedly induces consumers unaware of this fact to choose Gerber’s pricy products over other, less costly predecessor and regular formulas that do not contain probiotics.
     Scientific studies show that probiotic supplementation in infant formula neither cuts down harmful pathogens, grows good bacteria, nor reduces infections, the complaint states.
     The consumers say Gerber uses trademarked “Immuniprotect,” which contains probiotic bacteria purportedly found in breast milk, “Bifidus BL,” as a “deceptive marketing hook.”
     Experts “unanimously agree,” however, that breast milk is best for infants, and that it “provides unique nutritional benefits that defendant’s products do not,” the complaint states.
     The plaintiffs further allege that, despite rebranding the products in February 2010 and re-naming them in early 2011, Gerber has manufactured, marketed and sold the items with false representations on the packaging, labeling, and advertising since at least Sept. 27, 2009.
     The second amended complaint asserted claims for fraud, breach of warranty and unjust enrichment under the laws of New Jersey, California, Illinois, New York, and Washington.
     When Gerber moved to dismiss, the plaintiffs submitted a somewhat theatrical opposition.
     “With overblown and false indignation, Gerber accuses plaintiffs of ‘the consummate blue smoke and mirrors’ by ‘repeatedly replac[ing]’ Gerber’s statements promoting breast milk as the ‘ideal’ source of nutrition for babies with dot-dot-dot,” they wrote, as quoted in the ruling. “Gerber should focus on being more accurate and less accusatory.'”
     This protest held little sway, however, with U.S. District Judge Jose Linares who dismissed the action last week.
     Although Linares would not clear Gerber’s representations as neither false, deceptive, nor misleading, he said the plaintiffs have standing to assert claims based only on the products’ labeling, not the defendant’s overall marketing scheme.
     “Other than the products’ label, no plaintiff alleges even the general type or medium of ‘advertising’ to which they were allegedly exposed,” the unpublished ruling states. “Nor do plaintiffs otherwise allege facts as to how misrepresentations in the ‘advertising’ caused their injuries.”
     The plaintiffs are not entitled to injunctive relief, the judge ruled.
     “Throughout plaintiffs’ brief, they point to concrete examples of misleading statements from press releases and the website in the SAC,” Linares wrote. “Plaintiffs also refer to defendant’s ‘misrepresentations’ without specifying the source.”
     The judge later added: “To be sure, the court does not suggest that plaintiffs may never refer to defendant’s collective misrepresentations in the SAC,” Linares wrote. “However, as determined above, plaintiffs only have standing to assert claims based on the labeling of the products. In light of the fact that plaintiffs’ claims are premised on Gerber’s overall marketing campaign, the court cannot determine whether plaintiffs state a plausible right to relief based on the representations contained on the products’ labels alone. Accordingly, the court dismisses the SAC without prejudice.”

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