CHICAGO (Legal Newsline) – On June 22, Gerber Products Co. asked a federal judge for the dismissal of a class action lawsuit brought earlier this year over Good Start Gentle formula.

The suit, brought in Chicago federal court, states Gerber damaged consumers by charging higher prices for its Good Start Gentle formula, which was allegedly falsely advertised as reducing the risk of infant allergies and being endorsed by the Food and Drug Administration (FDA).

Gerber argues the suit should be dismissed because the lead plaintiff, Linda Hobbs, failed to make a plausible claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Gerber also claims Hobbs did not provide enough evidence to prove Gerber’s advertising claims were misleading (and thereby a breach of express warranty) and failed to sufficiently plead her common law claim of fraudulent misrepresentation.

On May 10, Hobbs, who acted as a babysitter and daily caretaker for a number of her nieces and nephews, filed a class action complaint against Gerber and its parent company, Nestlé (as Nestlé Nutrition, Nestlé Infant Nutrition, and Nestlé Nutrition North America), alleging that Gerber “falsely advertised [GSG] as the first and only infant formula to reduce the occurrence of allergies generally, as well as the first and only infant formula endorsed by the FDA.” 

Hobbs alleges she and other consumers affected by the company’s advertising “were injured by [Gerber’s] unlawful conduct and are entitled to actual, statutory, and punitive damages, restitution, interest, and the reimbursement of attorneys’ fees.”

Hobbs’ suit is one of several similar suits launched by consumers and government agencies around the country over the past few years. Most notably, the Federal Trade Commission launched a suit in October 2014 alleging Gerber engaged in deceptive practices through falsely advertising GSG’s anti-allergy benefits and its supposed FDA endorsement. 

At the same time, the FDA sent Gerber a warning letter alleging its advertising violated federal law, causing the company to make changes to the GSG label and alter some of its advertising claims.

In its memorandum on June 22, Gerber denied Hobbs’ claims that the company’s advertising violated the ICFA, breached express warranty, and caused fraudulent misrepresentation. 

Gerber asserted that “all three claims hinge on the allegation that Gerber’s advertising is false,” yet the company claimed that Hobbs “failed to plead any facts supporting this allegation of falsity,” concluding that, “Since scientific evidence exists that supports Gerber’s advertising, the advertising cannot be false (and any express warranty cannot have been breached) as a matter of law mandating dismissal of plaintiff’s claims.”

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