Court Spanks Baby Formula Claims As Too Speculative To Survive

Antitrust claims against the main supplier of nutritional additives for infant formula in the United States have been thrown out because the plaintiff’s claims were too speculative to establish standing, a federal judge in Maryland has ruled.

Judge William D. Quarles of the U.S. District Court for the District of Maryland granted defendant Martek Biosciences Corp. summary judgment in BNLfood Investment SARL v. Martek Biosciences Corp., finding that plaintiff BNLfood had failed to show an antitrust injury from Martek’s service agreements and alleged monopoly.

BNLfood alleged that in 2002, Martek began providing infant formula manufacturers – the Mead Johnson Company, Nestle Ltd., Abbott Laboratories, and PBM Products LLC – with nutritional supplements for brain and eye development, known as ARA and DHA.  Martek’s customers controlled over 90 percent of the baby formula market.

According to BNLfood’s complaint, three of the formula makers agreed to sole source agreements, in which they agreed to buy the nutrition supplements from only Martek.  Nestle did not sign a contract, but informally agreed to use only Martek for its ARA and DHA needs.

BNLfood, a Belgian company that extracts ARA and DHA from foods, began expanding to serve larger markets like the United States in 2009.  BNLfood claims that it was turned away by all four of the major U.S. formula companies because the Martek sole source agreements reached into 2016.

BNLfood also argued Martek employees investigated BNLfood by visiting BNL’s new facilities and collecting company information at trade shows.  The complaint included emails between Martek executives discussing how big of a threat BNL posed as a competitor.

The court was unconvinced by BNLfood’s arguments.  Judge Quarles found that BNLfood was only speculating that the sole source agreements were the reason BNLfood’s expansion failed in the U.S.

 “This evidence does not suggest that Martek was specifically targeting BNLfood or trying to exclude it from the U.S. market.  Instead it was trying to determine whether BNLfood was actually a competitive threat,” Judge Quarles wrote.