The Honorable John A. Kronstadt for United States Federal District for the Central District of California, denied a Defendant’s motion to reconsider his previous ruling on a motion to dismiss based upon a subsequent Fourth Circuit false advertising decision.  Oula Zakaria v. Gerber Products Co., Case Number 2:15-cv-00200 (July 14, 2015).

Plaintiff brought a putative class action against Gerber Products Co. (“Gerber”) alleging claims, inter alia, for false advertising, unlawful business practices, fraudulent business practices, and unfair competition.  She alleged that Gerber misrepresented that its baby formula, Good Start Gentle, which contained partially hydrolyzed whey protein, reduced the risk to infants of developing eczema.  Plaintiff also alleged that Gerber misrepresented that the FDA endorsed these false health claims.

Gerber filed a motion to dismiss.  Judge Kronstadt denied motion holding that Plaintiff adequately alleged that the representations of Gerber were false.  His holding was based in part on Plaintiff’s allegations concerning a scientific study that showed no evidence that consumption of the baby formula reduced the risk of developing allergic reactions to eczema, contrary to Gerber’s claims.

Thereafter, Gerber filed a motion to reconsider the motion to dismiss order, contending that a Fourth Circuit decision issued after the court’s ruling represented a significant intervening change of law.  This decision, In re GNC Corp., No. 14-1724, — F.3d —, 2015 WL 3798174 (4th Cir. June 19, 2015), held that, so long as there is a “reasonable difference of scientific opinion” as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws, including the California Unfair Competition Law and California Legal Remedies Act.  A complaint that failed to allege that no reasonable expert accepted the health claim at issue was dismissed.

Judge Krondstadt denied the motion finding the In re GNC case unpersuasive on three grounds.  First, Gerber did not cite to any California authorities that were consistent with In re GNC’s holding.  Second, the misrepresentation alleged by Plaintiff was not that all experts agree that Gerber’s product lacked a health benefit of reducing the risk of allergic reactions to eczema, but rather that the product lacked said health benefit.  Thus, the allegation concerns a false advertising claim on the statement that the baby formula reduced the risk of eczema in babies. Third, unlike the plaintiffs in In re GNC Corp., Plaintiff advanced other theories of liability that were not based on claims that Gerber made false statements.  Moreover, Plaintiff relied on the theory that Gerber misrepresented the FDA’s support of the health claims of the baby formula.