No Liability for|Beetles in Baby Food


     CHICAGO (CN) – Baby formula laced with beetles and larvae does not necessarily violate its manufacturer’s promises of wholesomeness and quality, a federal judge ruled, in dismissing without prejudice a class action involving Abbott Laboratories’ Similac.
     Lead plaintiff Chalonda Jasper, an Indiana mother, may have been grossed out by the beetle parts, but she may have no legal recourse against Abbott, even though she relied upon Abbott’s ad slogans, which included, “When it comes to the science of nutrition, Similac stands apart.”
     Abbott recalled more than 5 million containers of Similac in September 2010, less than a week after Jasper had bought it and began feeding it to her son.
     “Abbott announced that it was recalling more than five million containers of formula because the product may have been contaminated with beetles or beetle larvae,” U.S. District Judge Virginia Kendall wrote, citing Jasper’s complaint.
     Shortly afterward, the FDA “found that infants who ingested the formula experienced gastrointestinal discomfort and temporary refusal to eat,” the judge wrote.
     Jasper filed a class action seeking for “extreme mental anguish and pain and suffering.”
     In a claim of misrepresentation, Jasper said that Abbott “misrepresented its product to consumers by marketing Similac infant formula as a healthy product while omitting information about the beetle infestation at its Sturgis [Michigan] facility.”
     Jasper said the Sturgis plant had “a history of beetle infestation,” about which Abbott had received numerous customer complaints.
     But Judge Kendall found that Jasper’s inability to prove a specific injury or show that beetle parts reduced Similac’s nutritional value doomed her complaint.
     “Jasper does not allege a physical injury and her allegations of emotional distress are insufficient. Jasper does not allege that she purchased a defective container of Similac, merely that the Similac that she purchased was subject to a recall,” Kendall wrote.
     Indiana law allows damages for a purely emotional injury provided that one show that the conduct in question caused a “direct impact” on her well-being.
     But Judge Kendall said the complaint “does not allege that she fed her child any beetle larvae and makes no allegations that she or her son experienced a direct physical impact.”
     Kendall also was unable to uncover “any Indiana precedent allowing a negligent misrepresentation claim to proceed against a manufacturer of consumer goods based on the manufacturer’s advertisements to the public.”
     Abbott cannot be held liable for, on one hand, insisting that “you can trust Similac Sensitive to provide a strong start for your baby’s developing digestive system,” and on the other, being less than judicious with complaints of beetle infestation at its factories.
     Such complaints do not provide the type of “constructive notice” required to give rise to a claim under Indiana’s Deceptive Consumer Sales Act. “The notice must come from the consumer bringing the action,” Kendall wrote.
     “Jasper’s complaint includes no marketing statements from Abbott that claim Similac is safe. Instead, Abbott’s advertisements only refer to the nutritional value and nutrient blend of Similac.”
     The same logic undermined Jasper’s claim of breach of warranty.
     “Jasper fails to adequately allege that the Similac that she purchased lacked the benefits that Abbott advertised or that she subsequently failed to receive the benefit of the bargain.”
     To sum it up: “Jasper does not allege that a formula containing beetles or beetle larvae fails to contain a balanced blend of nutrients,” Kendall wrote.
     She granted Abbott’s motion to dismiss, without prejudice.

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