Terms undisclosed – is the agreement something to sneeze at?
... A little too quiet?
The Federal Trade Commission (FTC), which usually trumpets its success shortly after a win, has been mysteriously quiet about its recent settlement with Gerber Products Company – instead of the customary press release, all FTC watchers got was this lousy 60-day order.
The suit in question, filed almost five years ago in the District of New Jersey, concerned Gerber's "Good Start Gentle" infant formula. The FTC alleged that Gerber made a number of claims in its advertising that promoted the formula's supposed anti-allergy properties.
Gerber allegedly claimed that Good Start Gentle, made with partially hydrolyzed whey proteins, was simpler for tykes to digest than formula derived from standard cow juice, and that "feeding this formula to infants with a family history of allergies prevents or reduces the risk that they will develop allergies."
Like almost all advertising that involves infants and their attendant products, the campaign got a little weird. A baby's picture next to the tag "The Gerber Generation says, 'I love Mommy's eyes, not her allergies.'" And ... how does the kid know what an allergy is?
More straightforward was this tagline: "Gerber Good Start is the first and only infant formula that meets the criteria for a FDA Qualified Health Claim." Together with the general anti-allergy claims, the whole advertising campaign made the FTC itch.
Itch, folks. Get it? Allergies? Itch?
Quoting the Food and Drug Administration (FDA), the FTC explains that "to receive FDA approval for a health claim, a petitioner must demonstrate 'significant scientific agreement among qualified experts that the claim is supported by the totality of publicly available scientific evidence for a substance/disease relationship.'" In cases of limited support, "the agency will issue a letter outlining the circumstances under which it intends to consider exercising its enforcement discretion not to challenge the claim. The letter will specify, among other conditions, the specific language that must be used to communicate the limited evidence supporting the claim."
Despite more than one petition to the FDA, the FTC claimed that Gerber only secured permission for a highly qualified claim that "the relationship between 100% Whey-Protein Partially Hydrolyzed infant formulas and the reduced risk of atopic dermatitis is uncertain, because there is little scientific evidence for the relationship."
The commission sued for false representations of the formula's anti-allergy powers and false FDA approval claims. No one knows what the provisions of the settlement are, but the original complaint should be taken as a cautionary tale: When it comes to FDA approval, proper wording is everything
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