A New Jersey federal court has refused to dismiss a lawsuit alleging that Gerber falsely advertises some of its products as providing immune system boosts and as being nearly equal to breast milk. In re Gerber Probiotics Sales Practices Litig., No. 12-835 (U.S. Dist. Ct., D.N.J., order entered October 6, 2014). The plaintiffs alleged that Gerber misleadingly advertised three products— Good Start Protect Infant Formula, Good Start 2 Protect Formula for 9 through 24 months and DHA & Probiotic Cereal—as boosting immunity with an “Immuniprotect” formula that includes trademarked Bifidus BL probiotic bacteria.

Gerber challenged the plaintiffs’ fourth amended complaint for lack of standing, arguing that the complaint did not allege that a named plaintiff purchased the infant formula product, but the court found that the basis for the claims was the same in that Gerber advertised each product as “scientifically advanced” and superior through the inclusion of Bifidus BL. The court agreed with Gerber’s argument that the plaintiffs had failed to allege an ascertainable loss because “they fail to name the identity of the alleged branded and private label products” to which they compared Gerber’s products to assess the price difference, but because plaintiffs could plead that information with specificity, “the Court will grant a final opportunity to amend this claim insofar as they can insert the identities and prices of comparable products sufficient to allege ascertainable loss under the benefit of the bargain theory.”