SEATTLE, Nov. 3, 2014 (GLOBE NEWSWIRE) -- Attorney Advertising. Keller Rohrback L.L.P. is currently investigating claims that Gerber Products Co. ("Gerber") misled consumers about the allergy-related benefits of its Good Start Gentle Whey Protein Formula. Keller Rohrback L.L.P. seeks to determine whether consumers who bought Good Start Gentle formula did so because they were deceived by Gerber's allegedly false or misleading claims.
Last week, the Federal Trade Commission ("FTC") sued Gerber, which also does business as Nestlé Nutrition, Nestlé Infant Nutrition, and Nestlé Nutrition North America, charging the company with "deceptively advertising that feeding its Good Start Gentle formula to infants with a family history of allergies prevents or reduces the risk that they will develop allergies." The FTC also charges that Gerber falsely advertised that the formula's health claims were approved by the Food and Drug Administration ("FDA").
Gerber has manufactured, distributed, sold, and promoted Good Start Gentle formula to the public since at least 2011. But long before then, Gerber had been seeking approval from the FDA to market Good Start Gentle as an effective alternative to breastfeeding for reducing the risk of childhood allergies.
The formula's primary ingredient is partially hydrolyzed whey protein, or PHWP. In June of 2005, Gerber petitioned the FDA to "authorize a qualified health claim characterizing the relationship between the consumption of 100 percent partially hydrolyzed whey protein in infant formula and a reduced risk of food allergy in infants." The FDA rejected that petition, explaining to Gerber that "there is no credible scientific evidence to support the proposed qualified health claim relating the consumption of 100 percent partially hydrolyzed whey protein in infant formula to a reduced risk of the development of food allergy in infants[.]"
After being rebuffed by the FDA, Gerber again petitioned the agency on a much narrower ground: for approval to claim that the Formula reduced the risk of one condition: atopic dermatitis, a skin rash commonly known as baby eczema. In response, the FDA approved a qualified health claim on several narrow grounds, including the following:
"For healthy infants who are not exclusively breastfed and who have a family history of allergy, feeding a 100% Whey-Protein Partially Hydrolyzed infant formula from birth up to 4 months of age instead of a formula containing intact cow's milk proteins may reduce the risk of developing atopic dermatitis throughout the 1st year of life and up to 3 years of age. FDA has concluded that the relationship between 100% Whey-Protein Partially Hydrolyzed infant formulas and the reduced risk of atopic dermatitis is uncertain, because there is very little scientific evidence for the relationship."
Despite the extremely cautious nature of this FDA approval, Gerber allegedly used it as the cornerstone for a deceptive marketing campaign designed to convince parents that Good Start Gentle had broader allergy risk-reducing properties. The FTC called those advertisements were "deceptively cute." For example, in the following advertisement, which appears in the FTC complaint, Gerber featured a picture of an infant above the words, "I love my Mommy's eyes, not her allergies."
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Gerber also began including on Good Start Gentle packaging the following gold label, which also appears in the FTC complaint:
A photo accompanying this release is available at http://www.globenewswire.com/newsroom/prs/?pkgid=28796
This "gold seal of approval" is not what the FDA granted Gerber; rather, as the FTC has said, "The FDA allowed Gerber to make the narrow claim but only if Gerber carefully qualified its statement to make it clear that there is 'little scientific evidence' for the relationship."
Selling infant formula like Good Start Gentle has meant big business for Gerber's parent company, Nestlé. In its 2013 report to shareholders, Nestlé reported that its roughly $10 billion in annual sales for Nestlé Nutrition were supported in the United States by "the continued roll-out of innovations to help prevent colic and allergies, strengthening the Gerber brand franchise."
If you would like more information regarding Keller Rohrback's Gerber Good Start investigation, please contact attorneys Gretchen Cappio, Daniel Mensher, or Matthew Preusch via email or call us toll free at 800.776.6044.
Keller Rohrback, with offices in Seattle, Phoenix, New York and Santa Barbara, has successfully pursued claims against product manufacturers and distributors on behalf of our clients. We are committed to helping those harmed by anti-consumer practices, and have achieved multimillion dollar results on behalf of classes of plaintiffs.
