Days after the U.S. Federal Trade Commission (FTC) filed a lawsuit to enjoin Gerber Products Co. from claiming that its Good Start® Gentle infant formula helps reduce allergies in children, a consumer filed a putative class action in Arizona federal court alleging the same facts. Werthe v. Gerber Prods. Co., No. 14-8216 (U.S. Dist. Ct., D. Ariz., filed November 3, 2014). Additional information about FTC’s lawsuit against Gerber appears in Issue 543 of this Update.
Like the FTC complaint, the consumer action alleges that Gerber advertises the partially hydrolyzed whey protein (PHWP) in its Good Start® Gentle formula as reducing the risk of atopic dermatitis in infants. As a result, Gerber charges “a significant premium” over other infant formulas, the plaintiff asserts. The complaint cites Gerber’s labeling, which allegedly promises that its product is the “1st & Only Routine Formula to Reduce the Risk of Developing Allergies” and that it “Meets FDA [U.S. Food and Drug Administration] Qualified Health Claim,” and contrasts it to Gerber’s allegedly rejected requests to FDA to allow the company to link PHWP infant formula to a reduced risk of food allergies and atopic dermatitis in infants despite “’no credible’ evidence.” The plaintiff alleges a violation of the Arizona Consumer Fraud Act, breach of express warranty and unjust enrichment, and she seeks class certification, compensatory and statutory damages, an injunction, attorney’s fees, and a corrective advertising campaign.