While the defendant attempted to have the certification decision (preliminary) deferred until mediation took its course, US District Judge John Kronstadt nonetheless felt it prudent to go ahead with preliminary approval without waiting for the outcome of mediation stemming from a lawsuit brought against Gerber Products Co. by the Federal Trade Commission (FTC) over allegations that Gerber had stepped out of bounds in the promotion and marketing of its products.
To that end, the FTC took issue with Gerber’s assertion that use of its Good Start Gentle formula and, specifically, its hydrolyzed whey protein could help shield infants from developing allergies - a common concern of modern-day parents. In its Gerber Consumer Fraud Lawsuit brought against the Nestle SA subsidiary in October 2014, the FTC accused Gerber of marketing Gerber Good Start Gentle and its benefits as having been approved by the US Food and Drug Administration (FDA), when, in reality, the FDA had turned thumbs down against Gerber’s claim the formula could reduce the risk of eczema, in one of two FDA rejections with regard to benefits surrounding allergies.
The plaintiff bringing the proposed Gerber Good Start class action is Oula Zakaria, who filed her case shortly after the FTC brought its action against Gerber. Zakaria asserts that she and other class members paid a higher cost for a product they believed to be superior to competing products that sold at a lower price point. Her lawsuit also asserts that not only did the FDA reject Gerber’s claims that its Gerber Good Start Gentle formula could help prevent allergies, but also a determination by scientists that partially hydrolyzed whey protein carried no capacity for reducing allergy risk.
In her baby formula lawsuit, Zakaria asserts that Gerber earned as much as $515 million each year from sales of Baby Good Start Gentle through various key retailers while misleading the public.
A mediation session stemming from the FTC action had been scheduled for January 15. With that in mind, Gerber had asked the judge to delay his ruling on the Zakaria class action until after the mediation.
In her Gerber Consumer Fraud Lawsuit, Zakaria asserts that Gerber spent years claiming that Baby Good Start Gentle remained the first and only baby formula capable of reducing an infant’s risk for developing allergies through the use of partially hydrolyzed whey protein. Gerber is also alleged to have widely misled mothers to believe the product and the inherent claims had been endorsed by the FDA, when, in fact, they had not.
There could potentially be thousands of class members. The case is Oula Zakaria v. Gerber Products Co., case number 2:15-cv-00200, in the US District Court for the Central District of California.