John O'Brien Jul. 31, 2015, 10:03am

BROOKLYN, N.Y. (Legal Newsline) – A federal judge is allowing Abbott Laboratories to file a motion to dismiss a class action lawsuit filed in May over its Similac Advance Organic Infant Formula.

In June, attorneys at Winston & Straw asked U.S. District Judge Pamela Chen, of the Eastern District of New York, for permission to file its dismissal motion. It listed eight arguments it anticipates making.

The lawsuit claims 26 of the ingredients in the organic formulas are prohibited in organic foods. It claims the ingredients are “irradiated substances, synthetic compounds, or produced from hazardous substances.”

After the plaintiffs’ attorneys, led by Todd Garber of Finkelstein Blankinship in White Plains, N.Y., wrote that Abbott’s request to file the motion should be denied, Chen sided with Abbott Laboratories at a conference on July 9.

An amended complaint will be filed by Thursday, and the motion to dismiss it is due Aug. 27.

Arguments that Abbott Laboratories are planning are:

-Federal law preempts all of the plaintiffs’ claims because an independent organic certifier acting as an agent for the U.S. Department of Agriculture has certified that the formula qualifies as organic under federal law;

-Federal law allows the ingredients that are the subject of the plaintiffs’ lawsuit;

-The Department of Agriculture has primary jurisdiction over all of the plaintiffs’ claims;

-Plaintiffs can’t complain they were tricked into buying products with ingredients they didn’t want because the ingredients were listed on the labels of the products;

-The New York consumer fraud claim fails because Abbott Laboratories has complied with federal regulations and because plaintiffs can’t claim they would not have purchased the product but for the alleged deception;

-The express warranty count does not state a claim because courts have held that labels are not warranties;

-The claim for unjust enrichment duplicates and rehashes other claims; and

-None of the claims are pleaded with particularity.

“The complaint contains just one paragraph about each plaintiff, with only the bare factual detail that is set out at the beginning of this letter,” the letter says.

“Plaintiffs do not allege the required who, what, when, where and how of the supposed fraudulent conduct.”

The plaintiffs’ letter to Chen listed their counter-arguments in detail. They say federal law doesn’t preempt their claims because the non-agricultural ingredients that they are challenging are not included on the USDA’s “National List.”

“(M)any of Abbott’s ingredient were petitioned to be added to the National List, and explicitly refused by the USDA, stressing yet again that it is not allowed in organic infant formula,” the plaintiffs wrote.

Those ingredients are taurine, l-carnitine, beta-carotene, ascorbyl palmitate, lycopene, lutein and nucleotides.

Also, the plaintiffs say Abbott’s claim that it complied with federal regulations is “disingenuous.”

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