Noriega v. Abbott Laboratories

Background

Joanne Noriega brought a proposed class action against Abbott Laboratories under New York General Business Law §§ 349 and 350. Those provisions address deceptive consumer practices and false advertising. Noriega challenged Abbott’s packaging statement that PediaSure Grow and Gain was “[c]linically proven to help kids grow.”

According to the complaint, Noriega began buying the drinks for her eight-year-old grandson in or around January 2022. She allegedly paid a premium and chose PediaSure over alternative nutritional supplements because she understood Abbott’s statement to mean that the product had been clinically proven to help children grow taller. She stopped buying it in February 2023 after her grandson remained short for his age and became overweight.

The packaging included an asterisk directing consumers to smaller text stating, “Studied in children at risk of malnutrition.” Abbott’s website listed six clinical studies as references for the growth statement. Noriega’s complaint also identified three Abbott-funded studies that, according to the complaint, did not find evidence that PediaSure increased children’s height-related measurements, as well as published criticism of some studies Abbott relied on.

Abbott’s Motion

Abbott moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not adequately state a legal claim. Abbott argued that Noriega had not plausibly alleged that the statement “clinically proven to help kids grow” was materially misleading because studies cited on Abbott’s website reported increases in height or height-for-age measurements among children who consumed PediaSure.

Noriega responded that the complaint plausibly alleged misleading conduct based on three categories of evidence: methodological criticisms of Abbott’s supporting studies, published literature questioning those studies, and other Abbott-funded studies that did not find a connection between PediaSure and increased height.

Court’s Analysis

To state claims under New York General Business Law §§ 349 and 350, a plaintiff must allege consumer-oriented conduct, a materially misleading act or statement, and injury resulting from that conduct. The court explained that whether product labeling is likely to mislead a reasonable consumer is generally a factual question that is not suitable for resolution on a motion to dismiss.

The court held that Noriega’s complaint alleged enough facts to plausibly state claims under both provisions. The existence of studies supporting Abbott’s statement did not end the inquiry. Noriega had also alleged that some supporting studies had methodological weaknesses, including possible failure to account for “catch-up growth,” the absence of a control group, or the use of a substance different from PediaSure.

The court also considered the complaint’s allegations that published literature criticized the methods used in several studies and that three Abbott-funded studies did not find a connection between PediaSure and increased height. The court said these allegations, viewed together, made Noriega’s challenge substantial and plausible rather than mere criticism of scientific studies.

The court did not decide whether Noriega’s criticisms would ultimately be proven, whether Abbott’s studies were scientifically sound, or whether the studies established that PediaSure helped children grow. It also did not resolve the parties’ dispute over whether the asterisked statement about children at risk of malnutrition adequately addressed any possible misleading impression. Those issues, the court held, could not be resolved on the pleadings and were more appropriately assessed with discovery and factual development.

Ruling

Judge Paul A. Engelmayer denied Abbott Laboratories’ motion to dismiss in its entirety. The Clerk was directed to terminate the motion at Docket 17. The court stated that a separate order would schedule an initial conference and establish a case-management plan for prompt discovery of Noriega’s claims.