Gerber Graduates® Puffs Lawsuit Preempted by Federal Law

An Oregon federal court has dismissed a lawsuit alleging Gerber’s
Graduates® Puffs is mislabeled because its packaging displays fruits and
vegetables not contained in the product. Henry v. Gerber Prods. Co., No.
15-2201 (D. Ore., order entered April 18, 2016).

The court first denied the plaintiff’s request to remand the case to state
court, then turned to Gerber’s motion to dismiss the claims based on
preemption by the federal Food, Drug, and Cosmetic Act. Gerber argued
that U.S. Food and Drug Administration (FDA) regulations allow the
company to provide visual depictions of the product’s “‛characterizing
flavor,’ even if the product does not actually contain any of the depicted
fruit, or indeed any fruit at all.” The court agreed, finding that the law
is “clear,” even if the “wisdom of the FDA’s regulations on this topic is a
different question for a different day.” The court dismissed the case but
granted leave to amend the complaint.

Issue 601