Gerber Probiotics Baby Food Class Action Lawsuit Partially Dismissed

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Gerber Products Co. will not face a number of claims in a consolidated class action lawsuit accusing the company of falsely advertising its baby probiotic products, a New Jersey federal judge ordered April 1, ruling that Gerber fell short of actually claiming its products are near equivalents to breast milk.

The five consolidated Gerber probiotic class action lawsuits alleged that Gerber’s Good Start Protect infant formula, Good Start Protect formula for children 9-24 months, and DHA & Probiotic Cereal Single Grain varieties in oatmeal and rice flavors are falsely advertised as providing immune system benefits and are equivalent to breast milk in nutritional value, though they do not actually provide benefits and are not nutritionally equivalent to a mother’s milk. U.S. District Judge Jose L. Linares, however, dismissed several of the claims.

The plaintiff’s claims for breach of express warranty were upheld against Gerber, said Judge Linares, allowing the Gerber class action lawsuit to proceed on these points. Specific promises and representations must be made that the customers rely upon in their purchase of the products, he said, and the plaintiff’s assertions are “replete with statements Gerber made on its labels and throughout its advertising campaign” explaining the immune system benefits of its baby formula.

“The Complaint also sets forth that Plaintiffs paid a premium for the products that they would not have paid absent their belief in the affirmations on the product label and in advertisements,” wrote Linares. “These allegations are sufficient to establish a plausible breach of express warranty under New Jersey law.”

Claims for unjust enrichment have a high standard in class action lawsuits, and Judge Linares dismissed that claim with prejudice. In New Jersey, unjust enrichment must include either not receiving the products they purchased at all, or otherwise conferred a benefit (for instance, money) to the defendant under a contractual or “quasi-contractual” relationship. The assertion that Gerber misrepresented the health benefits of products they purchased does not constitute a contractual relationship, and so this claim was dismissed.

The claim for breach of implied warranty of merchantability also has a fairly high standard; the products in question must, in New Jersey courts, must “defective or not fit for the ordinary purpose for which it was intended.” Judge Linares found that the Gerber baby formula did, after all, function as baby formula. He wrote, “in the instant matter, Plaintiffs do not dispute that the general purpose of the products was to function as infant food… the Court finds nothing in the Third Amended Complaint to allege that the products were not fit for their ordinary purpose of providing infant nutrition,” and dismissed that claim with prejudice, as well.

Linares also dismissed the claim for injunctive relief, because plaintiffs did not allege a likelihood of future injury. He also dismissed the California, New Jersey and Washington plaintiffs’ fraud claims because they did not identify when and where they purchased the products.

The plaintiffs in the Gerber class action lawsuit had claimed that Gerber’s marketing “implies that there is a proven scientific basis for the immune system benefits, by representing that the health-related claims are based on ‘studies’ and ‘research,’ ‘the body of scientific evidence on probiotic supplementation in infant formula shows that the probiotic ingredients in the products does not support the infant immune system and does not otherwise provide advertised health benefits.”

The class action lawsuit against Gerber was brought on behalf of all consumers who purchased the products in question from January 1, 2005 through the present, and is seeking compensatory damages, double damages, treble damages, statutory damages, punitive and exemplary damages, and restitution.

The plaintiffs are represented by James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC, Blood Hurst & O’Reardon LLP, Bursor & Fisher PA, Complex Litigation Group LLC, Scott & Scott LLP, Faruqi & Faruqi LLP and the Law Offices of Ronald A. Marron.

The Gerber Probiotic Baby Food Class Action Lawsuit is In re: Gerber Probiotic Sales Practices Litigation, case number 2:12-cv-00835, in the U.S. District Court for the District of New Jersey.