Good Grief: Gerber Good Start Gentle Soared on the Narrowest of Claims

Newark, NJAs the Gerber Good Start Class Action brought by plaintiff Oula Zakaria continues to roll toward ultimate certification, it’s useful to look back 18 months to October 2014, when the US Federal Trade Commission (FTC) launched a Gerber Consumer Fraud Lawsuit against the venerable manufacturer over claims made in its marketing and labeling.

It was on October 29 that year - just two days before Halloween - when the FTC brought its baby formula lawsuit against Gerber Product Co. with regard to its Good Start Gentle infant formula. The FTC took issue with claims made by Gerber that using Good Start Gentle baby formula over competing brands could reduce allergies - this, according to the FTC, in spite of a lack of adequate scientific proof.

Gerber, which is owned by Nestle SA, marketed Good Start Gentle as having been formulated with hydrolyzed whey proteins, or PHWPs, rather than proteins associated and originating with cow’s milk. Gerber, on its product labeling and in marketing materials, is alleged to have claimed that hydrolyzed whey proteins would reduce the risk of infant allergies or prevent them altogether.

Given the increased incidence of allergies in recent years, such a claim proved attractive to parents, who were then motivated to purchase the higher-priced Gerber Good Start formula over less-expensive, competing brands.

In its Gerber Good Start lawsuit, the FTC noted that Gerber had advertised that the US Food and Drug Administration (FDA) had approved Gerber’s claims with regard to the allergy-reducing properties and potential for Gerber Good Start Gentle. Specifically, the complaint took exception to an official-looking badge in gold color displayed prominently on the packaging, suggesting that the product was the “first and only formula” to receive FDA approval.

While that approval was sought, it was never given by the FDA without qualification, or so the FTC complaint alleged. The FDA did, indeed, grant permission in 2009 for Gerber to state that PHWPs were capable of reducing one specific type of allergy by way of a very narrow claim. However, the manufacturer was only allowed to make that claim provided it was made clear on labeling and promotional materials that there remained “little scientific evidence” to support its claims.

The FTC complaint alleged that Gerber did not follow this to the letter.

“Parents trusted Gerber to tell the truth about the health benefits of its formula, and the company’s ads failed to live up to that trust,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement issued at the time the FTC Gerber Good Start lawsuit was filed in late October 2014.

One of those parents who felt misled by marketing materials and labeling is Oula Zakaria, who filed her Gerber Consumer Fraud Lawsuit shortly after the FTC complaint was publicized. Zakaria feels misled in spending more to purchase higher-priced formula based upon the perception that Gerber Good Start Gentle could ward against allergies - a claim consumers believed was supported by the FDA. In hindsight, Zakaria believes she never would have paid the higher price for the Gerber product had she known the qualified health claim was so narrow in scope.

She believes there are a sufficient number of like-minded plaintiffs similarly situated that a class-action baby formula lawsuit is in order. A federal judge has already given preliminary certification.

Last October, when the FTC complaint was launched, a spokesperson for Gerber noted that “extensive, peer-reviewed scientific evidence supports the role of 100 percent whey partially hydrolyzed infant formula in reducing the risk of atopic dermatitis, commonly known as baby eczema, in infants with a family history of allergy,” said Kevin Goldberg, Nestle Vice President and General Counsel. “Further, Gerber has been authorized by the FDA to feature a qualified health claim based on this evidence.”

The FTC lawsuit is Federal Trade Commission v. Gerber Products Co., Case number 2:14-cv-06771, in the US District Court for the District of New Jersey.

The Zakaria lawsuit is Oula Zakaria v. Gerber Products Co., case number 2:15-cv-00200, in the US District Court for the Central District of California.