NutraVideo: Attorney Nair on the reasonable consumer

By Danielle Masterson

- Last updated on GMT

Related tags toddler formula Infant formula Gerber products company Formula milk reasonable consumer false advertising Fda Ftc

So-called 'transition' or toddler formulas allegedly trick parents into thinking these products adhere to the same standards as infant formula, according to three separate but nearly identical class action lawsuits.

The suits allege that experts recommend children over 12 months be given cow’s milk. However, the plaintiffs allege that caregivers are put under the false impression that these transition formulas are subjected to the same scrutiny as infant formula. The class action lawsuits allege the formula makers engaged in fraud, negligent misrepresentation, unjust enrichment, and breach of express and implied warranties. 

The milk-based transition formulas are 'confusingly similar' to that of the defendants’ formula products intended for infants, according to the class actions filed. 

Attorney Pooja Nair, partner at Ervin Cohen & Jessup LLP broke down the concept of advertising for the 'reasonable consumer' in food and beverage labeling.

“What they do is use something called ‘the reasonable consumer standard’ and what that means is that if you're filing a lawsuit and you're saying that an advertisement is deceptive or false,  it would have to mislead a reasonable consumer in the marketplace. It's not enough that just one consumer or even a few consumers looked at a product and construed the labeling one way. A reasonable consumer would have to do the same thing, meaning it was the average person as determined by the court,”​ explained Nair. 

The lawsuit pointed to a 2019 study​ of caregivers’ understanding of transition formula labeling, which found that 52% of those surveyed believed the products would “give toddlers nutrition that they wouldn’t get from other sources.”​ Per the complaints, such beliefs are not accurate given experts agree that toddler formulas offer “no unique nutritional value beyond what could be achieved through a nutritionally adequate diet.”

The class action lawsuits all seek to represent a Class of New York residents who purchased any of the transition toddler formulas. The plaintiffs are seeking a court order stopping the alleged false advertising of transition formulas, as well as damages and attorneys’ fees.

“What's unique and different about this particular line of cases is that there has been significant activity in the public health and advocacy space to get the FDA to do more regulating of these transition formulas,”​ Nair noted. 

To hear how Nair predicts this case will land, watch the full interview.

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