November 3, 2014

Deceptive AdvertisingOn October 29, 2014, the Federal Trade Commission (“FTC”) filed a complaint in the United States District Court of New Jersey against Gerber Products Co. (“Gerber”), the popular baby food manufacturer.  The complaint alleges that since 2011, Gerber has been deceptively advertising its Good Start Gentle formula by alleging that use of the formula could prevent or reduce infants’ susceptibility to allergies.  Furthermore, Gerber allegedly misrepresented to consumers that its Good Start Gentle formula was Food and Drug Administration (“FDA”) approved, when this was not the case.

Gerber’s Deceptive Advertising Case

In the FTC’s announcement, Jessica Rich, the Director of the FTC’s Bureau of Consumer Protection, stated that “[p]arents 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.”

The FTC alleged that Gerber represented, either expressly or by implication, that scientific tests had proven that its Good Start Gentle formula substantially reduced, and even prevented, infants from developing hereditary allergies.  Specifically, the packaging of Gerber’s Good Start Gentle formula states that it is the “1st & ONLY Routine Formula TO REDUCE THE RISK OF DEVELOPING ALLERGIES” without providing any further substantiation of those claims.  According to the FTC, the health benefits of Gerber’s Good Start Gentle formula were unsupported by any credible studies or scientific evidence.  Such claims, according to the FTC, violate the FTC Act, which prohibits the use deceptive advertising.

Additionally, the FTC has alleged that Gerber violated the FTC Act by displaying a gold badge on the packaging of its Good Start Gentle formula, which stated that the formula was the “1st and only [that] meets FDA qualified health claim.”  However, upon further investigation, the complaint states that the FDA had conditioned its approval on the requirement that Gerber clearly disclose to consumers that any health-related claims were supported by “little scientific evidence.”  The FTC alleges, however, that Gerber never included the FDA-mandated disclaimer in its advertising material.

Protect Yourself

Gerber is far from the only entity that has been investigated by the FTC for deceptive advertising.  For several months, the FTC has been aggressively targeting advertisers that make health-related claims.  Recent FTC actions and settlements underscore the fact that marketers that tout the health benefits of their products must ensure that any and all advertising claims are supported by credible and reliable clinical studies.

If you are interested in learning more about this topic, or if you have been served with legal process relating to deceptive advertising, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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