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Gerber Explains Vitamin C Not Used as a Preservative in Baby Snacks
Tuesday, March 26, 2024
  • Gerber filed a memorandum in support of its motion to dismiss a proposed class action that claimed the company had falsely advertised its baby food snack products as containing “no preservatives” even though they contained vitamin C. According to the lawsuit filed in November of 2023, the products were marketed in a misleading manner by bearing a label claim that they do not contain preservatives and listing the ingredient as “Vitamin C (Ascorbic Acid).” The plaintiffs allege that vitamin C is a preservative regardless of whether it is added to preserve the food or for some other purpose.
  • Ascorbic acid is generally recognized as safe for use in human food as both a chemical preservative and a nutrient. According to Gerber, the complaint is preempted because it conflicts with FDA’s regulatory scheme, “which does not require an ingredient to be labeled as a preservative unless it serves a preservative function.” Gerber claimed that vitamin C is used to fortify the products nutritionally, which are preserved through freeze drying, eliminating the need for further preservatives.
  • Gerber stated that consumers could not have been deceived by the “no preservatives” label since there is no ingredient in the products functioning as a preservative. It argued that it is “fanciful, illogical, and insufficient” to support a deception claim based on the theory that “no preservatives” should be interpreted to mean that there are no ingredients that could possibly function as a preservative, even if that is not their intended use.
  • This is one more case in a string of recent lawsuits challenging “no preservative” claims on products that contain ingredients that could function as a preservative. 
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