Test 2

     CHICAGO (CN) – Baby formula laced with beetles and their larvae does not necessarily contradict its manufacturer’s promises of wholesomeness and quality, according to a federal court.



     An Indiana mother and her peers may have been grossed out by revelations that their chosen baby formula’s ingredients included beetle parts, but may have no legal recourse against manufacturer Abbott Laboratories.
     Abbott is one of the country’s leading manufacturers of baby formula, developing products such as the well-known Similac. “When it comes to the science of nutrition, Similac stands apart,” said one advertising slogan quoted in the judgment.
     But according to the complaint, Similac’s standing apart may not have been a good thing for some families.
     In September 2010, Chalonda Jasper allegedly “purchased a container of Abbott’s Similac Advance Early Shield Powder infant formula and began feeding the formula to her son. Roughly four days later, 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.”
     Shortly thereafter, the FDA “found that infants who ingested the formula experienced gastrointestinal discomfort and temporary refusal to eat.”
     Jasper, as representative of the class of everyone who purchased one of the recalled lot numbers, eventually brought suit against Abbott for the “extreme mental anguish and pain and suffering” its actions caused.
     In her misrepresentation claim, Jasper noted 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 facility.”
     Described by the suit as having “a history of beetle infestation,” Abbott’s Michigan-based manufacturing facility had received numerous customer complaints.
     However, according to the opinion by U.S. District Judge Virginia Kendall, 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,” said the court.
     Indiana law provides that one can recover for a purely emotional injury provided that she shows that the conduct in question caused a “direct impact” on her wellbeing. A
     In contrast, according to Judge Kendall, 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.”
     The court was also 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 by the law to give rise to a claim under Indiana’s Deceptive Consumer Sales Act. “The notice must come from the consumer bringing the action,” explained the court.
     “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.”
     Simply put, “Jasper does not allege that a formula containing beetles or beetle larvae fails to contain a balanced blend of nutrients,” concluded Judge Kendall.

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