The problem, according to a recently filed Gerber Consumer Fraud Lawsuit (Oula Zakaria vs. Gerber Products Co, case number 2:15-cv-0200, in US District Court, Central District of California), is that it doesn’t - or so it is alleged. Prevention from allergy onset is not a claim Gerber can verify with supporting evidence, nor was it granted approval by the US Food and Drug Administration (FDA) to make those claims.
“People who bought this product would see on the label that it had been FDA-endorsed and that it reduced the risk to infants of developing skin problems,” said Stephen Fearon, of Squitieri & Fearon, LLP, in comments to Online Legal Media’s Heidi Turner (11/10/15). “They bought it trusting those statements, but those statements were false.”
Pivotal to the baby formula lawsuit brought by plaintiff Zakaria is the liberal use of the term “Qualified Health Claim.” The latter, in reality, is a reference by the FDA that denotes its failure to grant approval for the health claim brought forward (in this case, allergy prevention) due to scientific support for the claim that was limited or lacking at best. Thus, the health claim is non-qualified due to a lack of scientific evidence and support - but the term the FDA uses is “Qualified Health Claim,” suggesting that while the FDA had granted the approval for the infant formula, its position on the allergy prevention health claim was qualified and thus remained unapproved in that context.
For the consumer unaware of FDA parlance, claims of allergy prevention on the product label and the “Qualified Health Claim” misled plaintiff Zakaria to pay a premium for the Gerber product due to claims made, when she otherwise might have spent less for a similar product.
As reported by Heidi Turner, Gerber twice petitioned the FDA to approve its claims that partially hydrolyzed whey protein carried the capacity to reduce the risk of infant allergies or atopic dermatitis. On both occasions, the FDA rejected Gerber’s petition based on a lack of scientific evidence to back its claims. According to Zakaria’s lawsuit, “no scientific or other evidence existed at the time linking a reduced risk of infant allergies, including atopic dermatitis (a form of eczema), to the consumption of partially hydrolyzed whey protein,” court documents allege.
It is alleged that Gerber went ahead with its allegedly deceptive marketing practices in 2011. Three years later, the FDA was on Gerber’s doorstep via a warning letter, accusing the manufacturer of deceptive marketing practices related to the product and ordered Gerber to immediately put a stop to the misrepresentation. For that matter, it was also in 2014 that the Federal Trade Commission (FTC) launched a lawsuit against Gerber for false and misleading marketing claims.
That hasn’t stopped Gerber from “stonewalling” Zakaria’s discovery efforts since July, when the defendant’s second attempt at having Zakaria’s lawsuit dismissed, failed.
“On the eve of plaintiff’s last day to file her motion for class certification, after months of refusing to produce any documents, defendant purported to make its first production by email on Friday, Oct. 23, 2015, at 3:51 p.m.,” Zakaria said in court documents. “The contents of defendant’s production are currently unknown, as defendant’s gamesmanship deprived plaintiff of the time to adequately review the documents.”
The Gerber Good Start lawsuit was filed in California and is seeking approval as a class action, given the potential for similarly affected consumers across the country who may have been persuaded to purchase Gerber Good Start Gentle over a lower-priced brand due to the perceived benefits, which are allegedly false.
“This happened not just in California, but across the country,” Fearon said to Online Legal Media. “The same labels were used nationwide. They were misleading in California and in other states.”