We have all been in the grocery store and noticed the parent pacing the baby food aisle trying to carefully select the best option for their growing child. From infant formulas to table food and hand-held snack pouches, the choices seem endless. Commercially prepared or “shelf stable” baby foods rake in close to $7 billion annually, and as of April 2020, approximately a fifth of U.S. consumers reported that they expected to increase their spending on baby food due to the coronavirus outbreak. Baby food is big business, and the manufacturers have a responsibility to produce safe and nutritious products for consumers. It is why the most recent congressional report detailing heavy metal test results in popular baby food brands caused a media uproar and has led to several lawsuits.
Background and Overview
A House Oversight Committee report (PDF) released on February 4 looked into the presence of heavy metal levels in baby foods, as part of an investigation which called on companies to submit reports and internal testing data. In November of 2019, a congressional subcommittee asked seven of the largest baby food manufacturers to produce internal documents and test results after an outside investigation revealed high levels of toxic chemicals including arsenic and lead, in certain products. The subcommittee requested information from the following companies:
- Nurture, Inc. (Happy Family Organics)
- Beech-Nut Nutrition Company
- Hain Celestial Group (Earth’s Best Organic)
- Campbell Soup Company (Plum Organics)
- Walmart, Inc. (Parent’s Choice brand)
- Sprout Foods Inc.
While Nurture, Beech-Nut, Hain Celestial and Gerber responded to the congressional request, Walmart, Campbell, and Sprout refused to produce any documents, leading the subcommittee to become “greatly concerned that their lack of cooperation might be obscuring the presence of even higher levels of toxic heavy metals in their baby food products than their competitors’ products.”
The testing revealed high levels of arsenic, lead, and cadmium in baby food products. It found some products contained higher levels of heavy metals than are allowable in bottled water. While there are no federally mandated upper limits for lead, mercury, and cadmium in baby foods, the FDA sets maximum allowable levels in bottled water at 10 parts per billion (ppb) for inorganic arsenic, 5 ppb for lead, and 5 ppm for cadmium. According to the congressional report, the test results of baby foods and their ingredients “eclipse those levels: including results up to 91 times the arsenic level, up to 177 times the lead level, up to 69 times the cadmium level, and up to 5 times the mercury level.” High levels of toxic heavy metals were also found in organic products.
In one example highlighted in the report, testing from Nurture, which makes Happy Family Organics products, indicated the company disregarded their own internal threshold of 100 parts per billion (ppb) for baby snacks. Their baby food contained levels well above that limit. Hain Celestial, the maker of Earth’s Best Organic Foods, had arsenic levels exceeding 100 ppb as well.
Heavy metals do occur naturally in some foods, like rice and vegetables, but the amounts may be increased by adding enzymes, vitamins, and mineral mixes. Companies often do that, leading to dangerous levels of heavy metals in the final products.
How Metal Exposure Affects Infants and Toddlers
Heavy metal exposure to infants is a serious concern. According to the American Academy of Pediatrics, lead exposure at any level is extremely unsafe for children. Prior studies have linked heavy metal exposure to behavioral impairments, brain damage, damage to the nervous system, seizures, growth impairments, and even death.
In a recently filed class action complaint in Clark County, Nevada plaintiffs include the families of seven minors with autism and neurological disorders, which the parents claim were caused by long term exposure to heavy metals found in baby food products.
The NCBI published a study in 2015 which concluded that heavy metals disrupt metabolic function in two ways:
- They accumulate and thereby disrupt function in vital organs and glands such as the heart, brain, kidneys, bone, liver, etc.
- They displace the vital nutritional minerals from their original place, hindering their biological function.
More oversight is needed to help protect infants from serious health side effect sand long-term health damage, the report concludes. The Oversight Committee is urging the U.S. Food and Drug Administration (FDA) to determine whether there is a safe exposure level for infants and require manufacturers to comply with such limits. On March 5, the FDA announced new actions aimed at further reducing toxic elements in food for babies and young children. As part of its actions, the FDA issued a letter to baby and toddler food manufacturers urging them to consider chemical hazards that may be present in their products when conducting their internal hazard analysis. The letter went on to state that while toxic elements and other chemicals in food do pose a health risk, the FDA takes steps to remove those foods from the market. To date, no recalls have been issued for the baby food products mentioned in the congressional report.
Halo Theory in Food Litigation
The “halo effect” is when one trait of a person or thing is used to make an overall judgment of that person or thing. In litigation, it is the claim by plaintiffs’ lawyers that reasonable consumers would not expect to see any level of heavy metals in foods that are presented and marketed as “healthy” and nutritious”. And since there are no safe harbor levels for most heavy metals specific to baby food, there isn’t a specific threshold a defendant can point to and claim protection for consumers.
As of this month a total of 43 lawsuits have been filed in 12 federal courts leading to a motion filed with the U.S. Judicial Panel on Multidistrict Litigation (JPML) for coordinated pretrial proceedings in the Eastern District of New York where most cases are pending. Gerber and other defendants oppose consolidation arguing their suits should not be lumped in with suits against Hain Celestial Group. The JPML has yet to issue a decision on coordination however plaintiffs’ firms including Cohen Milstein Sellers & Toll, Moore Law Group and Baum Hedlund Aristei & Goldman are intaking clients and focusing on the personal Injury component of the litigation.
Baby Food Companies Respond
After the report’s release several companies involved in the testing issued statements defending their procurement and testing protocols and vowing to vigorously defend lawsuits filed against them.
Plum Organics said that given the lack of specific FDA guidance on baby food Campbell used “standards from California’s Proposition 65, the EU (European Union) and the WHO (World Health Organization), along with general guidance from the FDA on lead not specific to baby foods.” Gerber, a founding member of the Baby Food Council, claimed its safety standards “are among the strictest in not just the US, but the world,” adding they “take multiple steps including prioritizing growing locations based on climate and soil composition; approving fields before crops are planted based on soil testing.”
Hain Celestial claims the congressional report inaccurately categorized a meeting with the FDA (the report claimed the FDA received a “secret side presentation”) and that the data used in the report was outdated and did not reflect their current practices. They further stated that after meeting with the FDA they took several steps to reduce the levels of heavy metals in their finished products including no longer using brown rice in their products that are primarily rice-based.
Happy Family Organics also claimed the committee used “select data” and further accused the report of “tone bias.” The company also pointed out that the report failed to mention that many every day foods contain trace amounts of the heavy metals cited whether they are prepared at home or sold as packaged food. Beech-Nut took the opportunity to reassure parents that their products are safe and nutritious.
There are several legal hurdles in baby food litigation, and it is not yet clear whether the complaints filed will result in compensation for families. The FDA has stated that heavy metals cannot be completely avoided in the fruits, grains, and vegetables that are the basis for baby foods. And despite the comparison with FDA limits on heavy metals in bottled water and juices, it is important to note that chemicals dissolved in water or juice are absorbed by the body differently than heavy metals in foods, which are typically bound with complex carbon ligands that make them less likely to be absorbed by the body.
Additionally, courts have not been receptive to lawsuits involving trace levels of pesticide residues in foods. Lawsuits against General Mills over their Nature Valley Products and Cheerios, Florida’s Natural Growers over glyphosate in orange juice, and Kellogg’s Co. over their Nutrigrain bars all failed to survive motions to dismiss or were otherwise cancelled.
While the litigation unfolds, parents should consult their child’s pediatrician before changing their food choices.
Written by Jerise Henson
About the Author
Jerise Henson is the Academy Content Writer at The Mass Tort Institute. She has served in numerous roles in mass tort firms from case manager to paralegal and director of client services. She is passionate and dedicated to improving education and training for allied professionals in the mass tort industry.