FTC to Food Marketers: Don’t Forget the “Q” in QHC

By Ricardo Carvajal& Riëtte van Laack

FTC filed a complaint in the district court of New Jersey alleging that certain of Gerber’s advertising claims for its hydrolyzed-whey-based infant formula constitute deceptive acts or practices and the making of false advertisements, in violation of the FTC Act. FTC challenges as unsubstantiated Gerber’s claims that its formula reduce the risk of allergies in infants who have a family history of allergy. FTC also challenges as false or misleading Gerber’s advertising of its qualified health claim (QHC).

In May 2009, Nestlé Nutrition submitted a QHC petition to FDA requesting that the agency exercise enforcement discretion for a QHC characterizing the relationship between consuming 100% whey-protein partially hydrolyzed infant formula and a reduced risk of atopic dermatitis. FDA determined that the relationship was “uncertain, because there is very little scientific evidence for the relationship.” FDA’s letter of enforcement discretion issued in May 2011 sets forth tightly worded qualified claims that are limited to one type of allergy, namely atopic dermatitis.

According to FTC’s blog posting, “Gerber took the FDA’s narrow letter and turned it into a prominent gold badge that read: ‘1st & Only Meets FDA Qualified Health Claim.’ The leap Gerber made from FDA’s cautious admonition to what the FTC says consumers would view as an FDA approval claim” is at the heart of one of the counts in the complaint. The other count addresses Gerber’s allegedly unsubstantiated allergy prevention claims. FTC requests permanent injunctive relief, consumer redress, and additional relief as the Court may determine to be just and proper.