A Virginia federal court has held that plaintiffs alleging Gerber Products Co. sold baby foods adulterated with heavy metals do not have standing to sue. In re Gerber Prods. Co. Heavy Metals Baby Food Litig., No. 21-0269 (E.D. Va., Alexandria Div., entered October 17, 2022). The plaintiffs did not assert standing on the basis of personal injury but rather argued that the injury they allegedly suffered was economic harm for having purchased “a product that was ‘worthless or worth less’ than the purchase price due to Defendant’s material omissions.”

“Plaintiffs have not alleged the Baby Food Products failed to provide Plaintiffs’ children with nourishment or to otherwise perform as intended,” the court noted. “Although Plaintiffs never explicitly address whether they or their children consumed the Baby Food Products, the Court can infer the Baby Food Products performed as intended based on Plaintiffs’ acknowledgement that they purchased said products repeatedly and ‘frequently.’ … Plaintiffs paid for safe and healthy food for their children and apparently received just that—the benefit of their bargain. Accepting the pleadings as alleged, Plaintiffs’ only complaint is that the Baby Food Products’ levels of Heavy Metals are ‘unsatisfactory to [them].’ [] Without more, such an assertion does not amount to a concrete and particularized injury.”

The court found that the price-premium theory also failed for lack of evidence. “Plaintiffs fall short of establishing a price premium theory of economic harm for the same reasons they do not successfully articulate a benefit of the bargain theory: they fail to allege any facts showing the value of Baby Food Products was less than what Defendant falsely represented or what Plaintiffs believed it to be at the time of purchase.”

The court also determined that the question of setting levels of allowable amounts of heavy metals in baby foods is within the primary jurisdiction of the U.S. Food and Drug Administration (FDA). “It is important to note that the ‘FDA’s testing has shown there [is] no immediate health risk to children from exposure to toxic elements at the levels currently found in food.’ [] Plaintiffs ask the Court to substitute its judgment on what levels of Heavy Metals in baby food are safe for the FDA’s judgment. This type of scientific determination is particularly within the FDA’s discretion and expertise.” The court granted Gerber’s motion to dismiss without prejudice.

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