Thursday, March 22, 2012

“Safe for Consumption by Infants” Formula Claim Could Be Misleading

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Infant formula purchasers alleging that Abbott Laboratories misled consumers about safety in connection with the sale of five million containers of contaminated Similac brand formula stated claims under the New York Deceptive Practices Act, Texas Deceptive Trade Practices Act, and New Hampshire Consumer Protection Act, the federal district court in Central Islip New York has ruled.

Regardless of whether the claims “sounded in fraud” or were premised on specific misrepresentations rather than an “advertising scheme,” they were not subject to the heightened requirements of pleading fraud with particularity under Rule 9(b) of the Federal Rules of Civil Procedure, the court determined. The applicable standard for claims under all three statutes was notice pleading under Rule 8(a).

The purchasers alleged that Abbott misled consumers as to the safety of Similac through the following affirmative statements:

(1) Similac is “safe for the consumption by infants”;

(2) Abbott was “dedicated to the highest standards of manufacturing and marketing—and to complying with all applicable laws and regulations”;

(3) Similac “provid[es] babies with excellent nutrition for growth and development and has been clinically proven to aid brain, bone and immune system development”; and

(4) Abbott is “committed to conducting research to ensure that formula-fed infants receive the highest quality products to meet their nutritional needs.

Puffery v. Affirmative Misrepresentation

Statements that are vague or mere puffery or hyperbole such that a reasonable consumer would not view them as significantly changing the general gist of available information are not material, even if they are misleading. Under this standard, statements (2), (3), and (4) were not actionable, the court decided.

However, the court held that statement (1) about safety supported claims under the statutes based on affirmative misrepresentation. By identifying the alleged misrepresentation as being located on the product packaging and alleging that they relied on this statement in purchasing and paying a premium price for the contaminated formula, the purchasers asserted the requisite causal connection between the deceptive act and their injuries.


A recall program did not render the claims under the New York and New Hampshire statutes moot, according to the court. Without more specific information about whether the recall program would reasonably compensate the Texas plaintiffs, the question of whether the program constituted a reasonable offer under the Texas statute was not ripe for review.

Ohio Laws

A class action claim failed under the Ohio Uniform Consumer Sales Practices Act because the purchaser did not contend that she could meet the Act’s class action notice requirements, the court ruled. The Act provided that a class action could not be maintained unless the purported violation was either (1) an act or practice declared to be deceptive or unconscionable by a rule adopted by the Attorney General before the consumer transaction on which the action was based or (2) an act or practice determined by an Ohio state court to violate the Act and committed after the decision had been made public.

The purchaser could not pursue a claim under the Ohio Uniform Deceptive Trade Practices Act because consumers lacked standing to sue under the Act, according to the court.

Claims Under Texas Law

Purchasers bringing a claim under the Texas Deceptive Trade Practices Act were ordered to provide written notice to Abbott Laboratories of the claim within 20 days, after which the claim would be abated for 60 days.

The March 5 opinion in Leonard v. Abbott Laboratories, Inc. will be reported at CCH Advertising Law Guide ¶64,612.

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