A California federal court has denied Gerber Products Co.’s attempt to dismiss a false advertising lawsuit about the company’s Good Start® Gentle based on the reasoning in a June 2015 Fourth Circuit decision that significantly changed the law. Zakaria v. Gerber Prods. Co., No. 15-0200 (C.D. Cal., order entered July 14, 2015). The June decision found that, “so long as there is a ‘reasonable difference of scientific opinion’ as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws.” In re GNC Corp., No. 14-1724 (4th Cir., order entered June 19, 2015).
After the court denied its motion to dismiss on June 18, Gerber filed for reconsideration, arguing that In re GNC “has changed the law of false advertising.” The court, noting that the Fourth Circuit decision was not binding on the states of the Ninth Circuit, found the reasoning of In re GNC unpersuasive for three reasons: (i) Gerber failed to cite any California cases consistent with the ruling; (ii) the plaintiff’s allegation did not rest on the opinions of experts, but rather on a factual argument that Good Start® Gentle does not contain the health benefit advertised on its label; and (iii) the plaintiff’s theories of liability go beyond the claim that Gerber knowingly made a false statement about its product. Accordingly, the court denied Gerber’s motion for reconsideration.