We’ve all been at the supermarket and observed parents pacing around the food aisle in an effort to choose the right choice for their child’s growth. From infant formulas, tables food, and bags for snacks that are hand-held, the options seem infinite. Foods that are prepared commercially and “shelf food items that are stable” bab than $7 billion each year in April of 2020, around five percent of U.S. consumers reported that they were expecting to increase their expenditure on baby food because of the coronavirus epidemic. Food for babies is a huge business and food manufacturers are required to create safe and healthy items for their customers. That’s why the latest report from Congress on the findings of heavy metal tests for popular brands of baby food has caused controversy in the media and filing heavy metal baby food lawsuits.

Background and Overview

The House Oversight Committee report (PDF)released on February 4 examined the existence of heavy metals in baby food in the course of an investigation that demanded companies submit reports and internal test data. In the month of November, the subcommittee of Congress demanded seven of the largest baby food producers to submit internal reports and test results following an investigation by outsiders revealed the presence of toxic chemicals, like arsenic as well as lead in some products. The subcommittee demanded information from the following firms:

• Nurture, Inc. (Happy Family Organics)
• Beech-Nut Nutrition Company
• Hain Celestial Group (Earth’s Best Organic)
• Gerber
• Campbell Soup Company (Plum Organics)
• Walmart, Inc. (Parent’s Choice brand)
• Sprout Foods Inc.

When Nurture, Beech-Nut, Hain Celestial, and Gerber have responded to the request of Congress, Walmart, Campbell, and Sprout did not produce any documentation, causing the subcommittee “greatly worried about the possibility that their inaction may be concealing the presence of higher levels of dangerous heavy metals within their infant food products than their rivals in their products.”

The tests showed the presence of arsenic, Cadmium, as well as lead found in baby food items. The tests revealed that some of the products had more heavy metals than allowed in water bottles. There are no Federally mandated upper limits on mercury, lead, or cadmium found in baby food The FDA set the maximum levels allowed in the bottled water as 10 parts for every billion (ppb) for arsenic inorganic 5 ppb for lead, and 5 ppm of cadmium. According to the report of Congress the test results for baby food and its ingredients “eclipse the limits of these substances, including results as high as 91 % arsenic levels and up to 177 times lead levels up to 70 times the cadmium levels as well as up five times the mercury levels.” A high concentration of heavy metals that are toxic is also present in organic foods.

In one instance highlighted within the study, tests by Nurture which produces Happy Family Organics products revealed that the company did not adhere to their internal guidelines for 100 parts per billion (ppb) for infant snacks. The food for babies included levels far above the limit. Hain Celestial, the maker of Earth’s Best Organic Foods, had arsenic levels of more than 100ppb also.

Metals with heavy metals are naturally present in certain foods, including vegetables and rice, but the amount can be increased through the addition of vitamins, enzymes, and mineral mix. Businesses often do this which can lead to high concentrations of heavy metals in the final product.

How Does Metal Exposure can affect infants and toddlers?

Exposure to heavy metals in infants is a major problem. Based on the American Academy of Pediatrics, exposure to lead at any level is extremely harmful to children. Previous studies have connected heavy metal exposure to behavior impairments and brain damage, damages to the nervous system seizures, growth impairments, seizures as well as the death of a child.

In a recent class-action lawsuit in Clark County, Nevada plaintiffs comprise families of seven children with neurological disorders and autism that parents say is the result of long-term exposure to the heavy metals in baby food items.

The NCBI published a research study in 2015 that concluded that heavy metals interfere with metabolism by two methods:

1. They build up and cause disruption to functions in important glands and organs like the brain, heart kidneys, bone, liver, etc.
2. They take away vital minerals that are essential to nutrition from their natural location and hinder their function in the biological system.

More supervision is needed to safeguard babies from serious health-related side effects and long-term health harm as the report concludes. This report by the Oversight Committee is urging the U.S. Food and Drug Administration (FDA) to establish what is the appropriate amount of exposure for infants, and require that manufacturers adhere to these limitations. On March 5th, the FDA announced new measures to further reduce the presence of harmful elements in food products for children and infants. As part of the actions, it announced that the FDA sent a letter to toddler and baby food manufacturers, urging them to take into account the chemical hazards contained in their product while conducting their own hazard analysis. The letter continued to say that although harmful elements and other chemical compounds found in food can cause health risks, however, the FDA is taking steps to remove these products from the marketplace. So far there have not been any recalls issued for the infant food items that are mentioned in the report of Congress.

Halo Theory in Food Litigation

“The “halo impact” is the phenomenon where one characteristic of a thing or person is used to form an overall assessment of that individual or thing. In the courtroom, it’s the argument made by the lawyers representing plaintiffs that reasonable consumers wouldn’t be expecting to find any amount of heavy metals in food items that are promoted to be “healthy” and healthy”. In addition, since there aren’t safe harbor levels for the majority of heavy metals specifically for baby food, there’s not a particular threshold that a defendant could use to claim the protection of consumers.

At the time of writing, the total number of lawsuits are pending in federal courts in 12 states which led to a motion being filed before the U.S. Judicial Panel on Multidistrict Litigation (JPML) to arrange preliminary proceedings within the Eastern District of New York where the bulk of cases are in the process. Gerber as well as other defendants are against consolidation , arguing that their lawsuits should not be included with lawsuits that are filed against Hain Celestial Group. The JPML has not yet issued a decision regarding coordination, however, plaintiffs’ firms like Cohen Milstein Sellers & Toll, Moore Law Group and Baum Hedlund Aristei & Goldman are taking clients on and focus on the personal injury part of the lawsuit.

Baby Food Companies Respond

Following the release of the report, several companies that were involved in the testing released statements in defense of their procedures for procurement and testing and vowed to fight the lawsuits brought against them.

Plum Organics said that given the absence of any specific FDA guidelines on infant food, Campbell utilized “standards taken from California’s Proposition 65, the EU (European Union) as well as the WHO (World Health Organization) as well as general guidelines from the FDA on lead , which is not specifically applicable to infant food.” Gerber, a founding member of the Baby Food Council has stated that the safety standards “are one of the highest in not only the US and around across the globe,” adding they “take various steps like prioritizing growth places based on climate as well as soil composition; and approving the fields prior to planting crops on the basis of soil tests.”

Hain Celestial asserts that the congressional report incorrectly classified a meeting in conjunction with FDA (the report stated that the FDA received the FDA a “secret informational presentation”) and also that the information that was used for the study was not current and didn’t accurately reflect their current methods. The company further claimed that following the attending a conference with FDA they took a variety of steps to reduce the level of heavy metals present in their products. One of them was not using Brown rice as a component in the products, which comprise mainly rice.

Happy Family Organics also claimed that the committee relied on “select information” and also claimed that the report was biased and “tone prejudice.” Beech-Nut stated that the report did not note that a lot of everyday food products contain trace amounts the heavy metals mentioned, regardless of whether they are cooked at the home or sold as packaged food items. Beech-Nut used the occasion to assure parents that their product is safe as well as healthy.

Potential issues

There are legal hurdles in the litigation involving baby food and it’s not evident if the claims submitted will be compensated for families. The FDA has declared that heavy metals are not completely eliminated from the grains, fruits and vegetables that form the base of infant food. Even though the comparison is not as strong as the FDA limitations for heavy metals in bottles of juices and water It is crucial to keep in mind that chemicals that dissolve in juices or in water are absorption by the body in different ways than heavy metals found in food that are generally coupled by intricate carbon ligands which reduce their ability to be absorb into the human body.

Furthermore, the courts have not been open to lawsuits involving small amounts of pesticide residues present in food. Legal actions for General Mills over their Nature Valley Products and Cheerios, Florida’s Natural Growers over glyphosate in orange juice as well as Kellogg’s Co. over their Nutrigrain bars were unable to prevail on motions to dismiss or otherwise dismissed.