Antitrust Law Daily Wrap Up, ADVERTISING—E.D. Cal.: Kendamil Toddler Drink maker must face allegations of false labeling, (Sep 23, 2025)

By Rebecca Mayo, J.D.

Claims that a product’s ingredients provide “immune support,” support “brain health,” and support “growth” can be considered implied nutrient content claims, which are barred by the FDA on products intended for children under the age of two years old.

Some but not all false advertising claims against Kendal Nutricare will move forward, according to the federal district court in Sacramento, California. The court allowed claims alleging product label statements that included the terms “immune support,” “brain health,” and “growth” to continue, finding that they qualified as implied nutrient content claims because the terms suggested healthy dietary practices. The court dismissed claims alleging that more general statements about the nutrients included in the product did not rise to the level of express or implied nutrient content claims that would be prohibited by the FDA (Gutierrez v. Kendal Nutricare USA LLC, No. 2:24-cv-02434-DC-CSK (E.D. Cal. Sept. 22, 2025)).

Kendamil Toddler Drink is a powder drink that is sold in the baby food aisle in grocery stores, alongside infant formulas and is intended for children ages 12-36 months old. The front of the label includes the following statements: “milk-based powder with iron,” “DHA + ARA,” “WITH HMOs,” and “WITH MFGM.” The back label includes the following statements: “MFGM Naturally present in our whole milk,” “HMOs Our unique HMO blend,” “PREBIOTIC With dual GOS + FOS prebiotics,” “IMMUNE SUPPORT Vitamin C,” “BRAIN HEALTH DHA, Iron, Iodine,” and “GROWTH Calcium, Vitamins D + E.”

A consumer purchased Kendamil Toddler Drink for her one-year-old child for about three months. The consumer filed a class action claim alleging that the statements were nutrient content claims, which are unlawful because the product is intended for children under the age of two years of age, that the product was misbranded because nutrient content claims are strictly prohibited by the FDA and mislead purchasers into believing that the product provides physical health benefits in order to induce parents into purchasing the product, and that the claims mislead reasonable consumers. The consumer brought claims for violations of the California Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and False Advertising Law (FAL).

Judicial notice. The court declined to take judicial notice of a pre-litigation Consumer Legal Remedies Act letter dated July 3, 2024 from the consumer’s attorney to Kendal and a letter dated August 5, 2024 from an attorney for Kendal to the consumer’s attorney responding to the pre-litigation letter, finding that the letters and their contents were not matters of public records or facts that were not subject to reasonable dispute. The court did take judicial notice of the complaint filed in Guiterrez v. Abbot Labs., No. 2:24-cv-02427-TLN-SCR (E.D. Cal.) and the complaint filed in Garland v. Mead Johnson & Co., 2:24-cv-01168-L-SBC (S.D. Cal.) as well as the nutrition facts panel and ingredients list from the product label for Kendamil Toddler Drink under the doctrine of incorporation-by-reference.

Unlawful claim. The unlawful prong of the UCL “borrows” violations of other laws and treats them as unlawful practices that are independently actionable. Here, the relevant federal regulation at issue prohibits “nutrient content claims... on food intended for use by infants and children less than 2 years of age unless the claim is specifically provided for in parts 101, 105, or 107.” The Sherman Law, California Health & Safety Code §§ 109875 et seq., explicitly adopts all federal food and nutrition labeling requirements as its own.

Nutrient content claims. The court found that none of the product statements were express nutrient content claims because they did not provide a “direct statement about the level (or range) of a nutrient in the food.” The court then turned to whether each statement was an implied nutrient content claim. A statement that a product contains certain nutrients, without characterizing the amount of nutrients or suggesting that a food has health benefits because of the nutrients are not nutrient content claims. However, statements that suggest a nutrient is absent, a nutrient is present in a certain amount, or suggest the food may be useful in maintaining health dietary practices, are implied nutrient content claims. The court noted that it is also important to consider the context and proximity of claims in relation to other statements when determining whether a statement is an implied nutrient claim.

The court found that the statement that the product was a “milk-based powder with iron” merely stated that there is iron included in the product, but did not indicate how much or suggest health benefits because of the nutrients and was therefore not an implied nutrient content claim. The statements “DHA + ARA,” “WITH HMOs,” and “WITH MFGM” merely listed the nutrient included in the product and did not include a specific amount of the nutrient or suggest health benefits because of the nutrients, and therefore was not an implied nutrient content claim. The statements “MFGM Naturally present in our whole milk,” “HMOs Our unique HMO blend,” and “PREBIOTIC With dual GOS + FOS prebiotics” described that a nutrient was present in the product, but did not describe any nutrient quantity or suggest health benefits because of the nutrients, and therefore was not an implied nutrient content claim.

However, the court found that the statements “IMMUNE SUPPORT Vitamin C,” “BRAIN HEALTH DHA, Iron, Iodine,” and “GROWTH Calcium, Vitamins D + E” suggested the product was useful in maintaining health dietary practices and were connected to a nutrient. Further, the phrases “immune support,” “brain health,” and “growth” are all items that suggest healthy dietary practices. Therefore the court found these statements to be implied nutrient content claims.

Structure/Function. Kendal argued that the statements were not nutrient content claims but were “structure or function claims” that describe the function of the nutrients, which are permitted. However, the court noted that a structure and function claim is permitted on dietary supplement labels and Kendal did not argue that the product was a dietary supplement. Further, even if the structure and function claim were permitted, Kendal had not attempted to demonstrate that its product met the three factors outlined in Greenberg v. Target Corp., which requires substantiation that the statement is truthful and not misleading, that the statement contains a prominent disclaimer that the FDA has not evaluated the statement and the product is not intended to diagnose, treat, cure, or prevent any disease, and that the statement itself does not claim to diagnose, mitigate, treat, cure, or prevent disease. Therefore, the court found that the product statements were not permissible structure/function claims.

Special dietary use. Kendal further argued that if the statements were nutrient content claims, they were excluded under section 105, which defines “special dietary uses” as particular uses of foods, including “uses for supplying particular dietary needs which exist by reason of age, including but not limited to ages of infancy and childhood.” However, the court found that this section did not discuss a specific claim, rather it defined the term “special dietary uses” and neither party cited any case law supporting their respective arguments. Therefore, the court found that the argument failed.

First Amendment. Kendal also argued that if the FDA regulations were interpreted to prohibit Kendal from identifying nutrients present in the product, such an interpretation would violate the First Amendment. However, the court noted that it had not interpreted the FDA regulations to prohibit Kendal from identifying nutrients present in the product and had even agreed that most of the statements that described that certain nutrients were present in the product were not implied nutrient content claims. Therefore, the court did not further examine the argument.

Fortification policy. The complaint stated that the FDA explicitly regulates certain nutrient content claims, such as “more” claims, and where a claim is based on a nutrient that has been added to a food, the food must comply with the FDA’s Fortification Policy. However, the court noted that the complain did not allege that the product statements were unlawful “more” claims because it simply included a description of unlawful “more” claims in the background section of the complaint, which was not sufficient to allege an unlawful “more” claim.

Unfair claim. Unlike an “unlawful” claim, a business practice may be “unfair” even if not specifically proscribed by another law. To support a finding of unfairness to consumers, the court uses a balancing test, which “weighs the utility of the defendant’s conduct against the gravity fo the harm to the alleged victim.” The court found that since the consumer adequately pled a claim under the “unlawful” prong for the statements the court found to be implied nutrient content claims, the consumer also adequately established a claim under the unfair prong.

Fraud-based claims. The consumer put forth two theories of fraud. First that the product statements were alleged nutrient content claims that mislead consumers into believing the product provided physical health benefits for children under two years of age, when the product is actually harmful bot nutritionally and developmentally. And second, that the product confused consumers as to the intended age group. The court found that the consumer adequately pled the who, when, and where, but did not sufficiently pled the “how” or “what is false or misleading about the purportedly fraudulent statement, and why it is false.” The consumer failed to sufficiently allege what the harm was and relying on FDA regulations alone was not sufficient to meet the Rule 9(b) pleading standard. The consumer also failed to allege how the statements would be false or misleading to a reasonable consumer. Further, the consumer failed to sufficiently allege how the statements on the label or the location of the product in the baby food aisle were misleading about the intended age of the product or how they were harmful to a reasonable consumer.

Unjust Enrichment. Kendal moved to dismiss the unjust enrichment claim because it is generally not recognized as a standalone cause of action under California law. However, the court noted that the Ninth Circuit and the California Supreme Court have construed California law to permit a cause of action for unjust enrichment through quasi-contract. Therefore, the court denied the motion to dismiss the unjust enrichment claim.

Injunctive relief. A previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an “actual and imminent, not conjectural or hypothetical threat of harm.” Such as the consumer’s plausible allegations that she would be unable to rely on the product’s advertising or labeling in the future, and so would not purchase the product although she would like to. However, the consumer here did not plausibly allege or argue that she would like to purchase the product again in the future but would be unable to rely on the product’s advertising or labeling and so would not purchase the product. Nor did she plausibly allege or argue that she might purchase the product in the future, as she may reasonably assume the product was improved. Therefore, the court found that the consumer failed to allege any actual or imminent future harm.

The Case is No. 2:24-cv-02434-DC-CSK.

Judge: Kim, C.

Attorneys: Cody Robert Padgett (Capstone Law APC) for Alana Gutierrez. Albert Tong (Maynard Nexsen LLP) for Kendal Nutricare USA LLC.

Companies: Kendal Nutricare USA LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews GCNNews