The U.S. Federal Trade Commission (FTC) has filed a complaint in a New
Jersey federal court against Gerber Products Co., alleging that since 2011
the company has falsely promoted its Good Start Gentle infant formula as a
product that can prevent or reduce the risk of a child developing allergies.
FTC v. Gerber Prods. Co., No. 14-6771 (U.S. Dist. Ct., D.N.J., filed October
29, 2014). The formula is apparently made with partially hydrolyzed whey
proteins (PHWPs) that Gerber purportedly claims make the product easier
to digest than formula made with intact cow’s milk protein. Product stickers
and ads compare the product to breastfeeding as a way to naturally protect
a baby from allergies and claim that the formula is the “1st and ONLY” “TO
REDUCE THE RISK OF DEVELOPING ALLERGIES.”

The company also allegedly claims that the formula “is the first and only infant
formula that meets the criteria for a FDA Qualified Health Claim.” According
to FTC, the U.S. Food and Drug Administration (FDA) twice rejected Gerber’s
requests to make a health claim for its infant formula with PHWPs, finding
“no credible” evidence to support the relationship between PHWP infant
formula and a reduced risk of food allergy and “little scientific evidence” of a
reduced risk for atopic dermatitis in infants. FDA would have allowed Gerber
“to make a highly qualified health claim that ‘the relationship between 100%
Whey-Protein Partially Hydrolyzed infant formulas and the reduced risk of
atopic dermatitis is uncertain, because there is little scientific evidence for the
relationship.’” Gerber has allegedly eschewed such language, using instead
gold seals on formula canisters “emblazoned with ‘1st and Only’ in the center,
‘Meets FDA’ in the top perimeter, and ‘Qualified Health Claim’ in the bottom
perimeter.”

Alleging a false or unsubstantiated allergy claim and false FDA approval
claim, FTC seeks preliminary and permanent injunctive relief to prevent future
violations of federal law, as well as “rescission or reformation of contracts,
restitution, the refund of monies paid, and the disgorgement of ill-gotten
monies,” and costs. FTC’s Bureau of Consumer Protection director reportedly
said, “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. Gerber didn’t
have evidence to back up its claim that Good Start Gentle formula reduces
the risk of babies developing their parents’ allergies.” See FTC News Release,
October 30, 2014.

 

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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