Litigation soon followed a February 4, 2021 report and September 29, 2021 supplement (discussed here) by the U.S. House of Representatives subcommittee on Economic and Consumer Policy that raised alarm over the levels of heavy metals— including arsenic, lead, cadmium, and mercury— reportedly found in baby foods produced by seven of the largest baby food manufacturers in the U.S.  Many of these class action lawsuits have been dismissed for lack of standing, among other reasons.

On October 31, 2022, a federal judge dismissed without prejudice plaintiffs’ fraud and consumer protection claims in a New Jersey district class action against Campbell Soup Co. and Plum PBC (formerly a subsidiary of Campbell) that alleged dangerous levels of heavy metals in Plum baby food products.  The court found that plaintiffs have not alleged a “concrete and present harm” that would establish that they have standing.  The plaintiffs’ pleadings were compared to similarly unsuccessful claims involving Sprout and Gerber baby foods and claims in California against Walmart’s Parents Choice baby food that were allowed to proceed.  As compared to the “conclusory allegations” that failed in the other cases, plaintiffs in Kochar v. Walmart, Inc., (N.D. Cal. Apr. 25, 2022) passed the standing test by:

• Alleging that the levels of heavy metals were above “naturally occurring” levels for the products directly at issue;

• Outlining the average levels of certain heavy metals in foods regularly consumed by children and infants per FDA testing to provide a comparative baseline necessary for the court to assess risk of harm for standing purposes;

• Alleging that Walmart was in possession of testing data showing high levels of heavy metals present in its products based on its own internal standards;

• Articulating a “premium price” economic injury by stating that the plaintiffs had “spent their own time and money dealing with purchasing safer baby food alternatives;” and

• Alleging that there were costs and expenses incurred related to their efforts to ensure that their babies have not been harmed, as well as costs and expenses for treatments their babies have received.

It remains to be seen whether any of the heavy metals lawsuits will ultimately be successful, given the difficulties and uncertainties in determining levels that are both safe and feasible, as outlined in FDA’s Closer to Zero plan (discussed here).  It seems clear, however, that getting to trial will require more than generalized concern and alarm.