Baby Food Companies Face Class Action Suits Regarding Toxic Chemicals
In the wake of a congressional report revealing high levels of heavy toxic metal contamination in several brands of popular baby food, class-action lawsuits are mounting...
Baby Food Companies Face Class Action Suits Regarding Toxic Chemicals
<strong>In the wake of a congressional report revealing high levels of heavy toxic metal contamination in several brands of popular baby food, class-action lawsuits are mounting.</strong>..
In the wake of a congressional report revealing high levels of heavy toxic metal contamination in several brands of popular baby food, class-action lawsuits are mounting. Most recently, several plaintiffs filed suit against Gerber Products Company in the U.S. District Court for the District of New Jersey.
House Subcommittee Report on Baby Food
In February, the U.S. House of Representative’s Subcommittee on Economic and Consumer Policy issued a report, entitled “Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury.” The report concluded that many commercial baby foods are tainted with significant levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury. “Exposure to toxic heavy metals causes permanent decreases in IQ, diminished future economic productivity, and increased risk of future criminal and antisocial behavior in children,” the report stated. “Toxic heavy metals endanger infant neurological development and long-term brain function.”
The report recommended that baby food manufacturers should be required by the U.S. Food and Drug Administration (FDA) to test their finished products for toxic heavy metals and be required by the FDA to report levels of toxic heavy metals on food labels. The subcommittee also advised that the FDA should set maximum levels of toxic heavy metals permitted in baby foods.
Class-Action Suit Against Gerber Products
Gerber Products (Gerber) is one of several baby food manufacturers facing consumer class-action lawsuits alleging that the company's baby food products contain unsafe levels of toxic heavy metals. According to media reports, nearly 70 lawsuits have been filed to date.
In Wallace et al. v. Gerber Products Company, the plaintiffs allege that Gerber has engaged in deceptive trade practices with respect to the marketing and sale of its baby food products (the “Baby Foods”) by failing to disclose that they contain levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury.
According to the lawsuit, “Gerber claims on its website that ‘We have among the strictest standards in the world. From farm to highchair, we go through over 100 quality checks for every jar.’ However, the plaintiffs allege that “Gerber’s packaging labels do not list, let alone warn, potential customers that the Gerber Baby Food Products contain toxic heavy metals.” The suit includes claims for consumer fraud, breach of warranty, and unjust enrichment. It seeks damages, as well as injunctive and declaratory relief. In support of the claims, the complaint cites the House Subcommittee Report, which found that Gerber “demonstrated its willingness to use ingredients that contained dangerous lead levels.”
Beech-Nut and Campbell Soup Company, the maker of Plum Organics baby food, are facing similar lawsuits. In defense of the suits, the manufacturers maintain that their products meet or exceed acceptable levels of heavy metals. With no federal standards for baby food, the companies point to those set by states like California, the European Union, and the World Health Organization.
"Given the lack of specific FDA guidance on baby food, Campbell used standards from California’s Proposition 65, the EU and the WHO, along with general guidance from the FDA on lead not specific to baby foods—to develop a testing protocol for evaluating whether heavy metals in Plum Organics’ products exceeded levels that independent authorities had determined to be acceptable,” Campbell said in a statement.
A Gerber spokesman said that the company’s baby food is safe, and that babies’ health and nutrition remain their priority.
Baby Food Safety Act of 2021
In the wake of the report, Congress introduced the Baby Food Safety Act of 2021. To address heavy metals in baby foods, the proposed bill would require manufacturers and the FDA to take the following actions:
- Set maximum levels of inorganic arsenic (10 ppb, 15 ppb for cereal), lead (5 ppb, 10 ppb for cereal), cadmium (5 ppb, 10 ppb for cereal), and mercury (2 ppb) allowed in baby food that manufacturers would have to meet within one year.
- Require those levels to be lowered further within two years through FDA guidance, and again after three years through regulation.
- Require manufacturers to test their final products – not just ingredients – for toxic heavy metals.
- Require manufacturers to post the results of their product testing online twice per year.
- Establish a public awareness campaign through the CDC to highlight the risks posed by toxic heavy metals in baby food.
- Authorize $50 million for research on agricultural methods of reducing toxic heavy metals in crops.
FDA “Closer to Zero” Baby Food Action Plan
The FDA has also committed to taking regulatory action. On April 8, 2021, it released an action plan for baby foods called “Closer to Zero,” which lays out the agency’s approach to reducing exposure to toxic elements in foods commonly eaten by babies and young children to the lowest possible levels.
“We recognize that Americans want zero toxic elements in the foods eaten by their babies and young children. In reality, because these elements occur in our air, water and soil, there are limits to how low these levels can be. The FDA’s goal, therefore, is to reduce the levels of arsenic, lead, cadmium and mercury in these foods to the greatest extent possible,” the FDA stated. “We are also sensitive to the fact that requiring levels that are not currently feasible could result in significant reductions in the availability of nutritious, affordable foods that many families rely on for their children. Our plan, therefore, outlines a multi-phase, science-based, iterative approach to achieving our goal of getting levels of toxic elements in foods closer to zero over time.”
The FDA’s action plan includes several phases and will be carried out over the next three years. The plan calls for the FDA to evaluate the scientific basis for action levels in consultation with stakeholders; set action levels; encourage adoption of best practices by the industry; and monitor progress.
In the absence of federally mandated thresholds for heavy metals, baby food manufacturers are likely to continue to face consumer lawsuits. The good news for all parties is that the Congressional report on heavy metals in baby food may have prompted the FDA to finally establish much-needed action levels.
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About Author David A. Einhorn
David Einhorn, Chair of the firm’s Technology Law practice group, handles diverse matters in intellectual property and technology areas. He has obtained successes in many prominent and precedent-setting cases in the fields of patent infringement, trademark infringement, copyright infringement, cybersquatting, trade name misappropriation and insurance coverage.
About Author Patrick J. McNamara
Patrick J. McNamara has extensive experience in environmental, redevelopment and land use law and related litigation. His activities include the representation of developers and public entities in preparation of and presentations before land use boards, redevelopment agencies, as well as county, regional and state agencies.
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