By Donna Gehrke-White, BrowardBulldog.org
The manufacturer of Enfamil has agreed to pay up to $12 million to settle a class-action lawsuit after a Weston mom alleged in federal court that the pricey, but popular baby formula had falsely advertised that it contained nutrients not available in other products.
A website, www.formulasettlement.com was created last week for an estimated 8 million Enfamil LIPIL buyers nationwide to claim their share of the settlement – up to $12, either in cash or in Enfamil formula.
Enfamil’s manufacturer, Mead Johnson, said it did nothing wrong but decided to settle the Broward lawsuit, along with seven others, to avoid costly court expenses.
“We denied the allegations when the cases were filed and continue to maintain that we did nothing wrong,’’ Mead Johnson spokesman Chris Perille wrote in an e-mail to Broward Bulldog. “However, rather than spend money fighting the lawsuits, we chose to resolve the case in a way that benefits Enfamil customers.’’
U.S. District Court Judge James I. Cohn in Fort Lauderdale gave preliminary approval to the nationwide settlement in March and will hold a final approval hearing on Sept. 26. People have until Aug. 22 to object.
Still to be determined: How much Weston mom Allison Nelson will receive for filing her lawsuit, said her attorney, William C. Wright of West Palm Beach. It has been proposed that she receive $10,000 plus the settlement that other consumers get.
“She was a real trooper,’’ enduring lengthy depositions in a case that was fiercely fought by both sides, Wright said.
To qualify to be part of the Enfamil lawsuit settlement, consumers must have paid for the formula and not received it as part of the federal government’s Special Nutritional Program for Women, Infants and Children (WIC).
Families who bought Enfamil for less than six months will receive $6 in cash or product. Those who bought it longer will get $12 or product. Purchases must have been made between Oct. 13, 2005 and March 31, 2010. Applications for the settlement can be downloaded here: www.formulasettlement.com.
Meanwhile, the settlement proposes that about a dozen law firms representing consumers around the country share $3.5 million in legal fees and $140,000 in expenses upon final approval by the judge, according to Wright and court documents.
Attorney Wright, the father of two whose two children were on Enfamil as babies, said it is a fine product and that was not the issue of the lawsuit. Rather, he and his client, Nelson, who has two children, believe that no company should be able to falsely advertise.
Nelson and other parents who sued objected to Mead Johnson claiming its Enfamil LIPIL brand offered better health benefits than other formulas. LIPIL is Mead Johnson’s name for a blend of two nutrients found in breast milk that promotes brain and eye development in infants. Enfamil, indeed, included those nutrients in its LIPIL formula. But in advertisements and other company literature, Mead Johnson claimed that Enfamil LIPIL was the only formula to do so.
Nelson said in her lawsuit that was false. Other companies also offer the nutrients – at lower prices. Had Nelson known about the cheaper alternatives, she would have opted to buy those, according to her filings.
Mead Johnson refused to drop the ads or further improve Enfamil so it would offer a distinctly better product, Nelson’s lawsuit alleged.
Competitors protested the Enfamil ads in 2008 to the National Advertising Division of the Council of Better Business Bureaus, according to Nelson’s lawsuit. NAD recommended changes in the advertising, but that did not happen, according to a third complaint filed at the agency in 2009. The National Advertising Division said it was “incredulous” that the Enfamil ads were not changed after two compliance hearings, according to Nelson’s lawsuit.
In addition to the agreed payouts, Mead Johnson has dropped from its advertising the language that touched off the lawsuits.
“The specific claims that were challenged in the lawsuits are not used in any materials today,’’ said spokesman Perille.
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