It didn’t take long for the lawsuits to start piling up following the release of a congressional report with the sensational headline, “Baby Foods are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium and Mercury.”
Manufacturers of several brands of baby food face dozens of proposed class action lawsuits across the country. The suits allege various causes of action—from unfair business practices and violations of state consumer protection laws to unjust enrichment and fraudulent concealment and omission.
The first potential battle in the multi-district litigation is a procedural rather than substantive one: where the cases should be heard.
Consolidation of class actions
Some plaintiffs’ attorneys filed a motion in early March to consolidate the litigation in the U.S. District Court in the Eastern District of New York. They said they were aware of at least 43 lawsuits against the baby food companies, including 38 proposed class actions, pending in 12 federal districts across the country.
The lawyers made their request before the Judicial Panel on Multidistrict Litigation (MDL Panel), which Congress created in 1968. The MDL Panel decides whether civil actions pending in different federal districts involve common questions of fact and should be transferred to one court for consolidated pretrial proceedings.
In one of the baby food cases—Albano, et al. v. Hain Celestial Group Inc., et al.—plaintiffs’ attorneys requested all the cases be transferred to the Eastern District of New York before Judge Joanna Seybert, who was appointed to the federal bench by President Bill Clinton.
“Each of the pending cases presents a common core of facts, in that each (i) alleges that defendants’ baby food products tested for harmful heavy meals; (ii) alleges that defendants’ food labeling was false and misleading and failed to disclose material facts; (iii) asserts economic injuries arising from defendants’ wrongful conduct; and (iv) seeks monetary and equitable relief,” according to the 18-page motion filed with the MDL Panel.
Thomas Zimmerman is an attorney who filed a lawsuit in Chicago against several manufacturers of baby food, including Beech-Nut Nutrition Company, Gerber, Hain Celestial Group Inc. and Nurture Inc. He said he planned to file a motion supporting the requested transfer of the cases to the Eastern District of New York.
Zimmerman anticipated his adversaries would request his lawsuit in Chicago pending against a specific defendant like Gerber or Hain Celestial Group be transferred to whichever federal district court has the most lawsuits pending against that particular defendant. That could result in the case being split up into several lawsuits in multiple jurisdictions, he said.
“The issues in these lawsuits are nearly identical and so what you would have if this occurred is the potential for inconsistent rulings on essentially the same issue,” Zimmerman said in an April 2 interview. “For example, there’s no FDA guidelines pertaining to heavy metals in baby food, per se. The court will have to determine whether the plaintiff can assert a claim under the requirements of a state’s consumer fraud act or breach of warranty and so forth. That is going to be an issue of law that would be identical for all the plaintiffs. If you have one judge making that determination as to Gerber, you might get a different ruling than a different judge making that determination as to Beech-Nut, for example.”
Responses from baby food manufacturers
Several baby food companies contacted for this article declined to comment on the pending litigation. However, they said they intended to “vigorously” defend themselves in the lawsuits.
A spokesperson for Gerber told Food & Beverage Insider, “[W]e fully stand behind the safety of all of our products.”
“At Gerber, our top priority is baby’s health and well-being,” the spokesperson added. “The standards we have in place for the safety and quality of our baby foods are industry-leading and among the strictest in not just the U.S., but the world.”
Nurture said it “stands by the quality and safety of all of its products and is proud to have best-in-class testing protocols in our industry,” while Campbell Soup Company said it “is confident in the safety and quality of our products.”
Beech-Nut Nutrition maintained its “products are, and have always been, safe and nutritious.”
“Beech-Nut Nutrition looks forward to continuing to work with the FDA, in partnership with the Baby Food Council, on science-based standards that food suppliers can implement across our industry,” the company added in an emailed statement. “Beech-Nut is committed to continuing refining its internal standards and testing processes as technology and knowledge develops.”
According to the lawsuits, the baby food manufacturers knowingly sold baby food containing high levels of toxic heavy metals. Had parents known this information, the plaintiffs alleged, they would have paid less for the products or not purchased them at all.
Zimmerman argued the baby food products purchased by the plaintiffs were worthless.
“It is worth zero because no parent would pay anything for that product and feed it to their infant knowing—if they knew—that it had these excessive levels of heavy metals,” he said.
The lawsuits cited the heavy metals found in baby foods, based on the Feb. 4 report published by the U.S. House of Representatives’ Subcommittee on Economic and Consumer Policy, which is part of the Committee on Oversight and Reform. A congressional investigation revealed top-name baby foods contained dangerous levels of toxic heavy metals such as mercury, lead, arsenic and cadmium.
Some of the baby food contained levels as high as 180 parts per billion (ppb) of inorganic arsenic, 886.9 ppb of lead, 87 ppb of cadmium and 10 ppb of mercury. In the motion filed with the MDL Panel, plaintiffs’ attorneys characterized the amounts disclosed in the congressional report as “excessive.” FDA, the motion noted, has established 5 ppb of both lead and cadmium as the maximum allowable in bottled water.
“These were off-the-chart levels,” said Zimmerman, who noted he’s spoken to about 100 parents. “These companies knew that their food had these excessive levels of heavy metals because they were doing the testing internally. They knew it and they did nothing about it except continue to sell it and to represent that it’s safe for your child to eat.”
He added, “Parents are infuriated when they learn about this.”
Among other things, the lawsuits request “equitable relief to force the companies to ensure that the baby food that they’re selling is safe for infants to eat,” Zimmerman said. “We want to ensure that this does not continue to happen.”
Spencer Sheehan is a lawyer in New York who also has sued the baby food manufacturers.
“Hopefully, there will be some standards that come out of this [litigation], so levels of heavy metals in baby food are no longer harmful to growing children,” he said in an interview.
‘Closer to Zero’
On Thursday, FDA released an action plan dubbed “Closer to Zero” to reduce exposure to toxic elements from food for babies and young children.
“Closer to Zero includes research and evaluation of changes in dietary exposures to toxic elements, setting action levels (recommended limits of toxic elements in foods that can be achieved by industry and progressively lowered as appropriate), encouraging adoption of best practices by industry and monitoring progress,” top FDA officials said in a statement.
The statement was issued by FDA Acting Commissioner Janet Woodcock, M.D., and Susan Mayne, Ph.D., director of the Center for Food Safety and Applied Nutrition (CFSAN).
“We recognize that Americans want zero toxic elements in the foods eaten by their babies and young children,” Woodcock and Mayne stated. “In reality, because these elements occur in our air, water and soil, there are limits to how low these levels can be. The FDA’s goal, therefore, is to reduce the levels of arsenic, lead, cadmium and mercury in these foods to the greatest extent possible.”