A federal judge has dealt a blow to consumer suits alleging that Gerber Products Co. made outsized claims about its probiotic products.
Finding the plaintiffs premised their causes of action on Gerber's overall marketing strategy but relied almost entirely on claims made on the product labels, U.S. District Judge Jose Linares dismissed the litigation for lack of standing.
"[No] Plaintiff alleges even the general type or medium of 'advertising' to which they were allegedly exposed" or how those alleged misrepresentations caused their injuries, Linares held.
However, the dismissal is without prejudice to the plaintiffs amending their complaint to make out valid consumer-fraud claims.
Five New Jersey suits were consolidated in Newark in May 2012. Last February, Gerber was successful in having two others transferred to the state and designated for multidistrict litigation as In Re Gerber Probiotic Sales Practices Litigation, 12-cv-835.
The plaintiffs allege that Gerber Good Start formulas and DHA & Probiotic cereals — which contain live bacteria that help digestion — were deceptively marketed as promoting immune system health and providing benefits near that of breast milk, despite numerous studies to the contrary.
Asserting consumer-fraud and other claims under New Jersey, New York, California, Illinois and Washington statutes, the plaintiffs said those marketing tactics induced consumers to spend more than they would have.
Gerber moved to dismiss, arguing the plaintiffs lacked Article III standing because they failed to demonstrate causation or entitlement to the injunctive relief sought.
Linares agreed, ruling that although monetary-harm claims were sufficient to allege an injury in fact, the plaintiffs neglected to assert the supposedly false marketing claims that led them to buy the products.
The plaintiffs, at best, referred only to the probiotic or breast milk-equivalency claims on the products' labeling, while some made only conclusory references to "advertisements and labeling" or simply "misrepresentations," he said.
None of the claims are premised independently on the labeling alone, and thus fall short, he said.
The complaint points to various marketing methods — television commercials, news releases and statements on Gerber's websites — but does not trace those methods to the purchases, other than the labeling, Linares said.
The court "cannot determine whether Plaintiffs state a plausible right to relief based on the representations contained on the Products' labels alone," he wrote.
Linares also said standing to seek injunctive relief was lacking because the plaintiffs did not allege the requisite threat of future injury.
The judge stopped short of finding, as Gerber had urged, that its advertisements are, as a matter of law, not misleading. Whether Gerber's claims are refuted by the content of scientific studies can't be considered at the pleading stage, Linares said.
The plaintiffs may replead their claims, but Linares advised them to include a choice-of-law analysis, to make clear which state's laws they believe apply and to avoid general arguments about the consumer-fraud statutes.
Gerber's lawyer, Scott Ohnegian of Riker Danzig Scherer Hyland & Perretti in Morristown, declines comment.
The lead plaintiff counsel, James Cecchi of Carella, Byrne, Cecchi, Olstein, Body & Agnello in Roseland, did not return a call or email message.
Ronald Marron, who heads a San Diego firm and filed the first suits against Gerber in California, did not return a call, and Wendy Johnson-Askew, spokeswoman for Nestle, Gerber's parent since its 2007 acquisition, did not answer an email.
Marron and Carella Byrne butted heads earlier in the litigation as each vied for interim class counsel designation. Marron accused Carella Byrne of filing copycat suits in the Gerber litigation as well as other class actions over Sprint's mobile data plans; Phillips' Colon Health Probiotic Caps, a Bayer Healthcare product; and advertising claims by Ferrero USA about Nutella sandwich spread.
In the Gerber matter, Linares ultimately chose Carella Byrne as interim class counsel in 2012, the same time he consolidated the New Jersey cases, based on the firm's experience with class actions and other factors.