Court Finds Gerber Case Unaffected by Fourth Circuit Change in False Ad Standards

A California federal court has denied Gerber Products Co.’s attempt to
dismiss a false advertising lawsuit about the company’s Good Start®
Gentle based on the reasoning in a June 2015 Fourth Circuit decision that
significantly changed the law. Zakaria v. Gerber Prods. Co., No. 15-0200
(C.D. Cal., order entered July 14, 2015). The June decision found that,
“so long as there is a ‘reasonable difference of scientific opinion’ as to the
merits of a manufacturer’s health claim, the alleged actual falsehood of
that health claim cannot be the basis for a cause of action under several
consumer protection laws.” In re GNC Corp., No. 14-1724 (4th Cir., order
entered June 19, 2015).

After the court denied its motion to dismiss on June 18, Gerber filed for
reconsideration, arguing that In re GNC “has changed the law of false
advertising.” The court, noting that the Fourth Circuit decision was not
binding on the states of the Ninth Circuit, found the reasoning of In re
GNC unpersuasive for three reasons: (i) Gerber failed to cite any California
cases consistent with the ruling; (ii) the plaintiff’s allegation did
not rest on the opinions of experts, but rather on a factual argument that
Good Start® Gentle does not contain the health benefit advertised on its
label; and (iii) the plaintiff’s theories of liability go beyond the claim that
Gerber knowingly made a false statement about its product. Accordingly,
the court denied Gerber’s motion for reconsideration.

Issue 572