Health Law Daily Wrap Up, ADVERTISING (FOOD, DRUG & MEDICAL DEVICES)—E.D. Cal.: False advertising case over toddler drink products moves forward, (Aug 19, 2025)

By Brian Craig, J.D.

The statements on the packaging claiming immune support, brain development, and digestive health plausibly constitute impermissible implied nutrient content claims.

In a proposed class action lawsuit alleging false advertising under California state consumer protection laws with toddler drink products manufactured by Abbott Laboratories and sold under the brand name Go & Grow, the federal district court in Sacramento has concluded that the case can proceed. In denying the toddler drink manufacturer’s motion to dismiss, the court concluded that statements on the packaging claiming immune support, brain development, and digestive health plausibly constitute impermissible implied nutrient content claims in violation of California consumer protection laws (Gutierrez v. Abbott Laboratories, No. 2:24-cv-02427-TLN-SCR (E.D. Cal. Aug. 11, 2025)).

A consumer purchased a toddler drink, sold under the brand Go & Grow 360 Total Care by Similac and manufactured by Abbott Laboratories, for her child when he was one year old. The consumer alleges she then purchased for about five to six months thereafter. The consumer filed a putative class action lawsuit in the federal district court in California alleging violations of California false advertising and consumer protection claims. The consumer alleges claims for violation of the California Consumer Legal Remedies Act (“CLRA”), violation of the California Unfair Competition Law (“UCL”), false advertising under California state law, and related California state law claims. The toddler drink manufacturer moved to dismiss based on insufficiency of the allegations. The complaint alleges that the drink manufacturer misbrands the toddler drink product by making nutrient content claims on packages that are strictly prohibited by the FDA. The manufacturer moved to dismiss.

Unlawful prong. The court first concluded that the allegations plausibly satisfy the UCL’s “unlawful” prong. The statements on the packaging collectively constitute an impermissible implied nutrient content claim. The product label claims immune support, brain development, and digestive health. The FDA regulation in 21 C.F.R. § 101.13(b)(2) provide “no nutrient content claims may be made on food intended specifically for use by infants and children less than 2 years of age.” These products have packaging that predominantly, uniformly, and consistently make nutrient content claims on the principal display panel of the product labels. The statement “28 Important Nutrients for Growth and Development” suggests the products may be useful in maintaining healthy dietary practices because of the nutrient content is expressed immediately below another statement that at least 40% of the daily value of certain vitamins. The complaint alleges California law incorporates the FDA regulation. Thus, the product’s label constitutes an impermissible nutrient content claim under federal regulations, which makes it an impermissible nutrient content claim under state law, violating the UCL’s “unlawful” prong.

Fraud. The court also found that the complaint sufficiently alleges fraud-based claims. The consumer adequately establishes why the statements on the drink product’s label are misleading based on the reasonable consumer test. The complaint alleges the toddler drink product misleads reasonable consumers into believing it will provide physical health benefits for children under two years of age. Taking as true allegations that any added sugars for children before two years of age goes against dietary guidelines, the court found that allegations that the product contains sugar can support fraud claims under the reasonable consumer test.

Other claims. In addition, the court found that the allegations in the complaint satisfy the “unfair” prong of the UCL and for unjust enrichment. The court, however, concluded that the consumer cannot seek injunctive relief. The complaint does not allege that the consumer will purchase the toddler drink products in future. The court permitted the consumer to amend the complaint to seek injunctive relief.

Therefore, the court largely denied the manufacturer’s motion to dismiss, with the exception of the allegation seeking injunctive relief.

The Case is No. 2:24-cv-02427-TLN-SCR.

Judge: Nunley, T.

Attorneys: Cody Robert Padgett (Capstone Law APC) for Alana Gutierrez. Melanie Blunschi (Latham & Watkins LLP) for Abbott Laboratories.

Companies: Abbott Laboratories

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