As some of our readers may know, the U.S. House of Representatives subcommittee on Economic and Consumer Policy released a report on February 4^th 2021 which reported on the levels of heavy metals— including arsenic, lead, cadmium, and mercury— found in baby foods produced by seven of the largest baby food manufacturers in the U.S. The baby food manufacturers named in the report were: (1) Nurture Inc. (which sells Happy Family Organics, including baby food products under the brand name HappyBABY); (2) Beech-Nut Nutrition Company; (3) Hain Celestial Group (which sells baby food products under the brand name Earth’s Best Organic); (4) Gerber; (5) Campbell Soup Company (which sells baby food products under the brand name Plum Organics); (6) Walmart Inc. (which sells baby food through its private brand Parent’s Choice); and (7) Sprout Foods, Inc.

The report is based on results from the first four of the above-listed companies because the others did not comply with the subcommittee’s requests for internal documentation and test results. While acknowledging that for the majority of heavy metals the FDA has not set thresholds for the level allowed in baby foods (one notable exception is a 100 ppb limit for arsenic in infant rice cereals), it concluded that “commercial baby foods contain dangerous levels of arsenic, lead, mercury, and cadmium . . . [that] pose serious health risks to babies and toddlers.” The report advocates several changes to the regulation of baby foods including mandatory testing of finished products for heavy metals, reporting of heavy metal content on food labels, and new regulations setting limits for heavy metals in baby foods.

As expected, the report has instigated the filing of class action lawsuits against the baby food manufacturers named in the report. On February 5^th, the day after the report’s release, a pair of consumer class action complaints were filed—one against Gerber in the U.S. District Court for the District of New Jersey  and the other against Plum, PBC in the U.S. District Court for the Northern District of California.

The complaint against Gerber draws heavily from the report’s conclusions and alleges violation of various consumer protection statutes on the theory that Gerber falsely and deceptively failed to disclose the presence of unsafe levels of heavy metals in their baby foods. The complaint against Plum takes a broader approach and alleges that their baby food products were falsely and deceptively advertised because the manufacturer was obligated to disclose (and did not disclose) “any level of Heavy Metals or undesirable toxins or contaminants” (emphasis added). While a court is unlikely accept the latter theory (see our prior post rejecting a similarly broad theory of deceptive advertising in the petfood context), allegations that the levels of heavy metals in the baby food products are unsafe may present viable litigation theories.