Facing a recently filed putative class action lawsuit over the labeling and marketing of its toddler formula, baby formula manufacturer Gerber has asked a federal judge in Chicago to dismiss the suit arguing that reasonable parents buying its toddler formula couldn’t possibly be misled by the claims on its Good Start Grow products. The motion comes on the heels of the dismissal of a second class action lawsuit involving Gerber’s formula by a Virginia federal judge earlier in the month.
In her complaint, plaintiff Melissa Garza alleges that Gerber makes a toddler formula that is marketed as nutritional, but which actually contains added sugars and less protein than cow’s milk. Garza alleges that Gerber’s Good Start GentlePro Infant Formula and Good Start Grow Toddler Drink are marketed nearly identically without disclosing that the toddler formula has added sugar, less protein and more carbohydrates than whole cow’s milk.
The complaint alleges that Gerber’s failure to adequately distinguish the two products and disclose that its toddler formula is inconsistent with expert advice constitute violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, the consumer fraud acts of other states and the federal Magnuson Moss Warranty Act and has unjustly enriched Gerber. Garza seeks to represent herself and a class of individuals in Illinois, Iowa, Arkansas, Wyoming, North Dakota, and Utah who purchased Gerber’s toddler formula.
The toddler formula, which the complaint refers to as a “transition formula” (a term Gerber takes issue with in its motion to dismiss), contains nearly the same ingredients as Gerber’s infant formula and is fortified with vitamins D and E as well as iron. However, Garza alleges that a global consensus of pediatric health organizations, including the American Academy of Pediatrics (AAP) Committee on Nutrition and the relevant Sub-Committee of the World Health Organization (WHO) have advised that transition formula is not recommended and that toddlers can meet all nutritional needs from whole cow’s milk, water and healthy foods.
Taking aim at the allegations that Gerber’s toddler formula is not as healthy as whole cow’s milk because it contains more sugar and less protein, Gerber argues these allegations cannot sustain a claim of consumer deception because the product does not claim “to be a substitute for whole cow’s milk nor purports to provide 100% of a toddler’s nutritional needs.”
The motion further takes issue with the alleged “global consensus of pediatric health organizations” that the complaint invokes arguing that Garza has misrepresented or misinterpreted the recommendations of these experts. The motion argues that transition formulas are only deemed “unnecessary” by WHO when “breastfeeding continues for up to two years or beyond.” The crux of Gerber’s motion is that the plaintiff cannot sustain claims for false or deceptive labelling because the label only includes true statements and that no reasonable consumer would be deceived by the label.
Gerber undoubtedly is hoping to ride the momentum of its recent victory in obtaining dismissal of a separate proposed class action lawsuit that accused it of failing to disclose the existence of heavy metals in its baby foods. However, Gerber will likely have to wait until 2023 before the fate of its motion in this case is decided.
We will continue to monitor developments in this and other product mislabeling cases.
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