According to court documents filed in relation to the lawsuit, Gerber allegedly marketed its Good Start Gentle as being the “first and only” formula that would reduce the risk of allergies in infants; would reduce the risk of infant atopic dermatitis (a skin disorder); was endorsed by the FDA to reduce the risk of allergies; and misrepresented the FDA’s term “Qualified Health Claim” to mean that the infant formula was approved by the FDA when in fact “Qualified Health Claim” means FDA approval was not given.
Gerber’s Good Start Gentle infant formula is made from partially hydrolyzed whey protein. In 2005 and 2009, Gerber reportedly petitioned the FDA to approve claims that partially hydrolyzed whey protein could reduce the risk of infant food allergies or atopic dermatitis, but the FDA rejected those health claims.
“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.
Gerber allegedly sold its Good Start Gentle to consumers with misleading labeling, starting at least in 2011, despite the FDA rejecting Gerber’s claims.
In 2014, the FDA issued a warning letter to Gerber, instructing the company to cease misrepresentations of its Good Start Gentle formula. Also in 2014, the Federal Trade Commission filed a suit against Gerber alleging false or misleading marketing claims linked to Good Start Gentle.
“This happened not just in California, but across the country,” Fearon says. “The same labels were used nationwide. They were misleading in California and in other states.”
Gerber has reportedly twice sought to have the lawsuit dismissed but the judge rejected Gerber’s motions, allowing the class action to proceed, and recently entered an order compelling Gerber to provide necessary documents and witness testimony. Trial is scheduled for July 2016.
The lawsuit is Oula Zakaria vs. Gerber Products Co, case number 2:15-cv-0200, in US District Court, Central District of California.