FTC lawsuit alleges Gerber ads lack the ‘qualified’ part of qualified health claims
The Commission accuses Gerber, which also does business as Nestlé Nutrition, of misleading consumers to think Good Start Gentle formula can help prevent or reduce the risk of all allergies in infants who have a family history of them. When, at best, the formula might be able to reduce only an infant’s chance of developing atopic dermatitis, according to a complaint filed Oct. 29 in the U.S. District Court of New Jersey.
A Nestlé spokesman said the firm is “confident that we have met the U.S. Federal Trade Commission’s … scientific evidence standard requirements,” to support the claims “we have made about Gerber Good Start Gentle Infant Formula.”
He added the firm “will defend our position with respect to these product claims, which are supported by extensive peer reviewed scientific studies.”
Ads fail to qualified allergy-fighting efficacy
At issue are advertising claims, such as those in the television spot for Gerber Good Start Gentle that tell consumers: “You want your Gerber baby to have your imagination … Your smile … Your eyes … Not your allergies.”
The ad explains that the partially hydrolyzed whey proteins in the product, which are easier to digest than intact cow’s milk, “may also provide protective benefits to your baby.”
A gold label sticker on the formula canister goes further, claiming: “1st and ONLY Routine Formula TO REDUCE THE RISK OF DEVELOPING ALLERGIES.” While other printed ads state: “Gerber Good Start is the first and only infant formula that meets the criteria for a FDA Qualified Health Claim.”
The advertising does not, however, include the qualifying language that FDA said is necessary to include when claiming a connection between 100% whey-protein partially hydrolyzed infant formula and the reduced risk of atopic dermatitis.
The agency said in a May 2011 letter to the firm that it would not enforce against such claims as long as they explained “there is little scientific evidence for the relationship” and that “the relationship between 100% whey-protein partially hydrolyzed infant formulas and the reduced risk of atopic dermatitis is uncertain.”
Qualified health claims like these are notoriously difficult for consumers to understand – especially when compared to catchy taglines, like the one used in some print ads for Gerber Good Start Gentle that says: “I love Mommy’s eyes, not her allergies.”
Thus many firms forgo using qualified health claims all together, rather than try to parse the approved language in a way consumers will understand and will make them want to buy a product.
Missing allergy qualifier misleading, FTC says
FTC also complains the advertising does not clearly state which allergies the formula can help ease, even though the approved qualified health claims all specifically list atopic dermatitis. The exclusion could lead consumers to think the formula can help ease all allergies.
FDA made clear in a May 2006 letter to the firm that there was “no credible” evidence to support broader health claims that partially hydrolyzed whey protein could reduce the risk of food allergies in infants.
Finally, FTC accused Gerber of “making a play on the word ‘qualified’ to mislead consumers about the FDA’s real assessment,” according to a consumer blog post by the commission.
It explains in the post that using a gold badge that says the formula “Meets FDA qualified health claims” misleads consumers, who likely are not familiar with the proper definition of the regulatory jargon, to think the product qualifies for the health claim and is, therefore, FDA approved.
In reality “qualified” should be applied to the “limited science supporting the claim,” FTC says.
Nestlé has a history of defending formula claims
Nestlé is no stranger to defending its advertisements for formulas and toddler products against false or misleading advertising allegations.
In August 2013, the firm successfully convinced a U.S. District Court Judge in New Jersey to throw out a class action suit that alleged immune system-related health claims for Gerber branded probiotic-enriched products were misleading.
The firm argued the class action case “cobbled together a string of conclusory assertions, vague references and errant mischaracterizations” about the products and after a year of trying to construct a case “still fail[ed] miserably.” (Read more about the case HERE.)
Nestle also successfully defended in 2012 claims its Gerber’s Graduate Healthy Meals and Lil’ Entrees were “unique and innovative” and “designed for preschoolers with protein and a full serving of veggies,” which were challenged by a competitor in the self-regulatory forum moderated by the National Advertising Division.
That case was a mixed-bag, though. The division of the Council for Better Business Bureaus also advised the firm to discontinue the “unsupported message that Gerber’s Melts were nutritionally equivalent to whole fruits and vegetables” and other claims. (Read more about the decision HERE.)