We reported on the April 25, 2022 dismissal by a New Jersey federal judge of a putative class action lawsuit against baby food producer Sprout Foods, Inc. after finding the alleged harm was “simply speculative” without the reported levels of heavy metals in the baby food being linked to any particular harm or risk to the plaintiffs.  In contrast, on January 10, 2022, a California federal judge refused to dismiss similar claims against Plum Organics, finding the claims are not preempted by federal law and that the suit plausibly alleges a reasonable consumer could be induced to pay more by the alleged omission of disclosures of potential toxins in the baby food.

On October 17, 2022, a Virginia federal judge followed the approach in the Sprout Foods case, dismissing claims against Gerber Products Co. by plaintiffs alleging economic harm from having purchased Gerber baby food products that were overpriced because Gerber failed to disclose the risk of containing harmful heavy metals on its packaging, inadequately tested for heavy metals, and failed to adhere to internal standards.  The case was dismissed on grounds of standing and federal preemption.

• On the issue of standing, the court concluded the baby food products were safe “as to” the plaintiffs, finding the complaint discusses the dangers of heavy metal exposure to human health generally but does not allege the baby food products were adulterated, recalled, or the cause of any reported injuries, or that their children are at imminent risk of developing any specific ailment in the future because they consumed the baby food products.

• The court also ruled against the plaintiffs on an alternative theory of economic injury based on allegations of having paid a “price premium,” finding the plaintiffs failed to allege any facts substantiating their conclusory allegations that would permit the court to determine the economic value of their alleged lost benefit without resorting to mere conjecture; thus, finding the plaintiff failed to demonstrate they did not get the benefit of their bargain or did not receive the full value of their purchase, the court found the plaintiffs lack standing

• The court also noted that the plaintiffs have not identified an affirmative duty or legal obligation, under the Federal Food, Drug and Cosmetic Act or any other law, requiring the disclosure of the presence of heavy metals in baby food products.

• On federal preemption arguments, the court found that FDA has primary jurisdiction to determine whether the amounts of heavy metals in baby food products is harmful.

Keller and Heckman will continue to monitor and report on litigation involving heavy metals in baby food, as well as FDA’s regulatory activities following two congressional reports (discussed here) that raised alarm regarding the levels of heavy metals— including arsenic, lead, cadmium, and mercury— reportedly found in baby foods.