Howard v. Gerber Products Company

Background

The plaintiffs brought claims under the fraudulent prong of California’s Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Gerber moved to dismiss the claims. The court stated that it was relying on its earlier rulings and assumed familiarity with the facts, legal standards, and parties’ arguments.

Fraud claims

The court dismissed the fraud claims because the plaintiffs’ theories of harm depended on hypothetical events and contingencies outside the scope of the case. The complaint described possible health effects from sugar, salt, and excessive reliance on pouches, but the court concluded that these allegations did not show the products were inherently harmful after one or a few uses. Instead, the alleged harms depended on a series of events, such as parents overly relying on the products and the risks eventually occurring.

The court granted the motion without leave to amend as to the fraud claims. It later stated that, because the plaintiffs had already been given an opportunity to amend in light of the cited appellate decision, those claims were dismissed with prejudice.

“Made with” statements

The court ruled that statements saying a product was “made with” a particular ingredient, such as “made with real veggies,” were not nutrient-content claims under the cited federal regulation. The plaintiffs’ unlawful-prong claim was therefore dismissed to the extent it relied on those statements. Because the statements were lawful on the basis addressed by the court, that dismissal was without leave to amend and was later stated to be with prejudice.

The court rejected Gerber’s argument that the same reasoning applied to statements that included an amount, such as “1 serving of superfoods” or “9 grams of whole grains per serving.” The motion was denied as to that type of statement.

Standing to seek an injunction

The court ruled that the plaintiffs had not established standing, meaning a sufficient legal basis, to seek injunctive relief. Their allegation that they would likely buy the products again if they could trust the label was sufficiently definite. But the complaint did not clearly show that, when the case was filed, they were likely to buy the products again for a child under two.

The court granted the motion with leave to amend as to the claims for injunctive relief. The plaintiffs received leave to amend only to allege that they had standing to seek that relief.

Other issues and disposition

The court declined to revisit its previous rulings on Gerber’s other dismissal arguments. It denied the motion as to preemption, implied nutrient-content statements such as “Grow Strong,” label statements about vitamin content, the plaintiffs’ ability to assert claims involving products they did not purchase, and possible remedies at law. The court stated that the plaintiffs’ unlawful-prong claims survived those rulings, so their unfair-prong and unjust-enrichment claims survived as well.

The motion to dismiss was granted in part and denied in part. The fraud claims and claims based on certain “made with” statements were dismissed with prejudice. The plaintiffs could amend only their allegations supporting standing to seek injunctive relief. Any amended complaint was due within 28 days, and Gerber’s response was due 21 days after that.