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Court Splits Baby Food Case Against Gerber

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By William Vogeler, Esq. on July 21, 2017 6:58 AM

A federal appeals court threw out claims that Gerber deceived consumers about its baby food, but said the plaintiff may sue for unfair competition.

The U.S. Ninth Circuit Court of Appeals affirmed in part, reversed in part, and remanded Bruton v. Gerber Food Products. The appeals panel said the company's labels were not likely to deceive the public about the quality of its baby food.

However, the plaintiff may have a claim that the labels violated California's Unfair Competition Law.

No Sugar Added

In the proposed class action, the plaintiff alleged certain labels were deceiving, such as the food was "as healthy as fresh," "no added sugar" and "natural." A trial court judge dismissed several claims and granted summary judgment to Gerber.

The appeals court said the plaintiff did not allege sufficient facts for a trial court to find that the labels were deceptive. Bruton included Gerber's labels and competitor's labels in the record, and the court said the competitors made many of the same claims.

"A reasonable jury comparing the labels side by side could not rationally conclude that Gerber's labels were likely to deceive members of the public into thinking that Gerber's products were of a higher quality than its competitors' products that made the same type of claims," Judges Diarmuid O'Scannlain, Ronald Gould, and Milan Smith wrote in the unsigned decision.

Unlawful Under UCL

However, the court said Burton may have a case under the UCL. California's Business and Professions Code, Section 17200, prohibits any unlawful practices.

"The predicate violation here is of California's Sherman Law, see Cal. Health & Safety Code §§ 110760, 110765, which itself incorporates standards set by FDA regulations, see id. §§ 110100, 110670," the court said.

In the same unpublished order, the court withdrew its prior memorandum decision in the case.

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