A New Jersey federal court has dismissed claims filed against Plum PBC and Campbell Soup Co. alleging the companies sold baby food products containing high levels of heavy metals. In re Plum Baby Food Litig., No. 21-2417 (D.N.J., entered October 31, 2022). In finding that the plaintiffs lacked standing, the court echoed the reasoning followed by a Virginia federal court in a decision dismissing a lawsuit against Gerber with similar claims. "Plaintiffs purchased the baby food products from Defendants to feed their children, and these products were fully used for their intended purposes. [] Plaintiffs do not allege that their children have suffered physical harm: the children did not starve or become nutrient deficient. [] Imparting nutrition is ostensibly what Defendants advertised regarding its baby food products," the court found. "Moreover, the [U.S. Food and Drug Administration's (FDA's)] opinion that parents should not throw out their supply of packaged baby foods or…
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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.'…
The attorneys general of 22 states have submitted a letter to the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) asserting that the agencies "are not sufficiently prioritizing a public health problem long overdue for robust action: children’s exposure to neurotoxic heavy metals (lead, arsenic, cadmium, and mercury) through foods specifically designed and marketed for babies and young children." Led by New York Attorney General Letitia James, the group argues that the existing plan to set limits on heavy metals, the Closer to Zero Plan, has "lengthy and vague timelines, which now extend to mid-2024 and beyond," and is "already behind schedule." "As a result of this and other agency delays, U.S. baby food manufacturers continue to largely self-regulate the amount of lead (and other toxic elements) that is contained within their products. Indeed, it remains up to the manufacturers to decide whether even to test their…
The attorneys general of 21 states have filed a petition for reconsideration for a citizen petition denied May 2, 2022, that urged the U.S. Food and Drug Administration (FDA) "to adopt a series of interim guidance measures intended to complement the long-term approach of the Closer to Zero Plan," which aims to reduce the amount of contaminants in baby foods. The attorneys general sought interim guidance to (i) set action levels for inorganic arsenic, lead, cadmium and mercury; (ii) set an action level for inorganic arsenic in infant rice cereal that is lower than the existing action level of 100 parts per billion; and (iii) issue guidance to industry that testing for heavy metals is a "preventive control" manufacturers should perform. The reconsideration petition takes issue with multiple points in the denial, including the argument that FDA did not consider relevant information as to its own authority. The attorneys general…
The Ecological Alliance has reportedly filed a lawsuit in California state court alleging The Kroger Co. failed to warn consumers about the presence of lead in several of its foods. Ecological Alliance LLC v. Kroger Co. (Cal. Super. Ct., Los Angeles Cty., no. and filing date unavailable). The complaint alleges that Kroger sells fifteen products that contain lead, including graham crackers, salad kits, bagels and spaghetti. The plaintiff advocacy organization purports to have tested the products and found levels of lead up to 140 times the limit set by California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Ecological Alliance, which seeks injunctions preventing Kroger from selling lead-contaminated products without a Prop. 65 warning, alleges that it sent violation letters to Kroger and the California attorney general in the summer and fall of 2021, but the government agencies failed to take action against the company.
The U.S. Food and Drug Administration (FDA) has released a list of the draft and final guidance topics that the agency is prioritizing for 2022. The list includes guidance on allergens, cell-cultured foods, heavy metals in juice and labeling of plant-based alternatives to milk and animal-derived foods. According to a caveat in the constituent update, "Although the FDA's intent is to publish all draft and final guidance topics on the list, modifications in plans may be needed to support emerging issues and Administration priorities."
Two plaintiffs have alleged that McCormick & Co. Inc. sells herbs and spices that "expose consumers to heightened levels of toxic heavy metals, including lead, arsenic, and cadmium," without providing warnings. Balistreri v. McCormick & Co. Inc., No. 22-0349 (N.D. Cal., filed January 18, 2022). The complaint cites a Consumer Reports article, "Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead," that purports to have found "sufficient levels of toxic metals as to render them unsafe for human consumption." "As a result of Defendant’s respective representations regarding the safety of their herbs and spices, and Defendant’s concealment of the fact that its herbs and spices contained elevated levels of toxic heavy metals, Plaintiffs and the Class members reasonably believed that Defendant’s Products were free from substances that would negatively affect children’s development as well as their own health," the complaint asserts. The plaintiffs seek to represent a class of consumers alleging violations…
New York Attorney General Letitia James has announced a probe into whether baby food contains toxic elements such as arsenic and other metals. In a press release, James said, "“Baby food manufacturers have a legal and moral obligation to ensure the safety of their products, and provide peace-of-mind to the parents who rely on their products every day. Through this probe, I am committed to protecting the health and wellness of the next generation.” D.C. Attorney General Karl Racine filed a lawsuit against Beech-Nut Nutrition Co., alleging "that Beech-Nut’s deceptive and misleading advertising violated the District’s consumer protection laws and misled parents that its baby food underwent the most stringent testing and was fully safe for babies when, in fact, the food contained high levels of toxic heavy metals." Racine is quoted as saying, “No company should profit by illegally deceiving parents about products that actually jeopardize the health and…
The U.S. Food and Drug Administration (FDA) has released "Closer to Zero," its action plan for reducing infants' exposure to heavy metals following a Congressional report on toxic elements in baby foods. "Although the FDA’s testing shows that children are not at an immediate health risk from exposure to toxic elements at the levels found in foods, we are starting the plan’s work immediately, with both short- and long-term goals for achieving continued improvements in reducing levels of toxic elements in these foods over time," the agency states. Under the plan, FDA will (i) "evaluate the scientific basis for action levels," (ii) "propose action levels," (iii) "consult with stakeholders on proposed action levels," and then (iv) "finalize action levels." The agency will then "establish a timeframe for assessing industry’s progress toward meeting the action levels and recommence the cycle to determine if the scientific data support efforts to further adjust…
The U.S. Food and Drug Administration (FDA) has responded to the House report on levels of heavy metals in baby food with the promise of additional action. The FDA statement notes, "First, today we issued a letter to industry reminding manufacturers of these types of foods of their existing responsibilities related to these efforts. Secondly, the agency is announcing that we’ll soon be putting into action a plan aimed at reducing toxic elements in foods for babies and young children to levels as low as is reasonably achievable." The industry letter asserts that the agency will take action to remove foods from the market "when the levels of toxic elements or other chemicals in foods do pose a health risk," citing as an example a consent decree the agency obtained in January 2021 to stop Valley Processing Inc. from selling adulterated juice. The agency's plan includes finalizing an action level…
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