Howard v. Gerber Products Company

Background

Tracy Howard alleged that Gerber Products Company violated a federal Food and Drug Administration regulation prohibiting most nutrient content claims on foods intended specifically for children under two. She also alleged that Gerber's labels were false and misleading. Her claims included violations of California's Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law, along with common-law fraud and unjust enrichment.

Standing

The court held that Howard adequately alleged standing to seek equitable relief. It also held that she could assert claims based on products she did not purchase when those products and the alleged misrepresentations were substantially similar to products she purchased. The court dismissed her claims based on the statements “With Vitamin C” and “With Vitamin C & E” because she did not purchase products bearing those statements and the statements uniquely implicated the FDA's fortification policy.

Unlawful Unfair-Competition-Law Claims

Gerber argued that Howard's claims were impliedly preempted, meaning that federal law displaced them. The court rejected that argument.

The court held that “Grow Strong,” “Wonderfoods awaken toddler’s love for nutritious foods,” and “Gerber Natural for Toddlers brings the goodness of naturally nutritious fruits selected and made with strict quality standards just for toddlers” were plausibly implied nutrient content claims. Because those claims were made alongside explicit statements about nutrients and suggested that the products supported healthy dietary practices, claims based on them could continue.

The court dismissed the unlawful Unfair Competition Law claim to the extent it was based on “made with real veggies,” “made with real veggies & fruits,” and “made with super foods whole grains.” The court concluded that these statements were ingredient statements, not nutrient content claims.

The court also held that Gerber's statements about vitamin percentages went beyond the narrow category of statements authorized by the FDA regulation. Statements that included more than a specific vitamin or mineral percentage, such as “Supports toddler’s healthy growth with 15% DV of calcium and 2g protein,” could support claims that continued.

Fraud-Based Claims

For the fraud-based claims, the court required Howard to plausibly allege that the labels communicated that the products were healthy for children and that the products were actually harmful. The court dismissed those claims as to non-pouch products because Howard's allegations focused almost exclusively on harms associated with pouch products.

The court held that Howard plausibly alleged that the nutrient claims on the Plant-Tastic pouches could mislead a reasonable consumer because the labels described the products as “nutritious, plant-based” and specially designed to provide protein. The court reached similar conclusions for most Wonderfoods pouches and for the Grow Strong and Gerber Natural for Toddler pouches, with one exception for each category as described in the opinion.

The court dismissed the fraud-based claims concerning the Organic for Toddlers Banana Raspberry & Yogurt pouch, the Organic for Baby Wonderfoods Carrot Apple Mango pouch, the VeggiePower pouches, the Natural for Toddler Sweet Potato, Mango, Pear & Kale pouch, and the Snacks for Toddler Fruit & Yogurt pouch. It concluded that the bare references to nutrients on those pouches were not plausibly misleading.

Unjust Enrichment

Because some of Howard's claims survived, the court denied the motion to dismiss her unjust-enrichment claim as to those surviving claims.

Disposition

Judge Vince Chhabria ordered that the motion to dismiss was denied in part and granted in part. The dismissals were with leave to amend. Any amended complaint was due within 14 days of the order; if no amended complaint was filed, Gerber's answer would be due 14 days after that deadline. The court also stated that discovery could begin immediately and scheduled a case-management conference for May 5, 2023.