NEW YORK (Legal Newsline) – Gerber Products Co., doing business as Nestle Nutrition, is seeking dismissal of a lawsuit alleging that the company fraudulently advertised a product it claimed would reduce the risk certain allergies in infants.

Lawyers for the company filed a memorandum in support of dismissal May 26 in the U.S. District Court for the Eastern District of New York.

New York resident Wendy Manemeit alleged in the suit that Gerber had dishonestly marketed a product called Good Start, an infant formula made with 100 percent whey protein partially hydrolyzed instead of cow’s milk.

Manemeit reportedly purchased 120 canisters of Good Start in its powdered form after she saw advertisements for the product on television and in magazines. She alleged that Good Start was advertised and marketed deceptively.

However, the defendant alleges that she has failed to demonstrate if the infant for whom she had purchased Good Start was at risk of developing allergies. It also claims that she had not alleged in the suit that she had received no benefit from the product.

“For infants that are not breast-fed, Good Start provides an infant’s complete nutritional needs as required by the FDA (U.S. Food & Drug Administration),” the court brief read. “Good Start also adds a potential benefit other infant formulas do not. This simply does not constitute false or deceptive advertising.”

In 2014 the Federal Trade Commission (FTC) sued Gerber and issued a warning letter to the company that its Good Start product label was in violation of Food and Drug Administration regulations. While the claim that hydrolyzed whey protein claim could help prevent an infant skin condition called atopic dermatitis was approved by the FDA for use, approval was not gained from the FDA to make further claims that the product reduced the risk for other skin allergies.

Gerber complied with the FTC warning and the matter was closed, court documents state.

The defendants argued that the plaintiff had failed to allege that she would purchase Good Start again and so had failed to demonstrate any risk of future injury. They also alleged the plaintiff has to establish she suffered injury as a result of a deceptive act and also show proof of false advertising.

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