Baby Food Makers Oppose Establishing Industry-Wide MDL For Lawsuits Over “Naturally-Ocurring” Heavy Metals in Popular Products

Although a growing number of baby food lawsuits continue be filed throughout the federal court system over toxic heavy metals found in many popular baby food products, several major manufacturers have opposed establishing one centralized proceeding in the federal court system to manage the litigation.

Since February 5, at least 38 proposed baby food class action lawsuits have been filed in U.S. District Courts nationwide, each involving allegations that products sold by Gerger, Beech-Nut, Plum and other popular manufacturers contained ingredients with high levels of arsenic, lead, cadmium and mercury, which may lead to long term developmental and neurological problems for children.

Last month, a group of plaintiffs filed a request with the U.S. Judicial Panel on Multidistrict Litigation (JPML) seeking to centralize and consolidate the claims before one judge in the U.S. District Court for the Eastern District of New York, where the majority of cases are currently pending.

In a joint response (PDF) filed on April 13, Beech-Nut, Campbell, Gerber, Hain Celestial Group, Nurture, Inc. Plum, PBC, and Sprout Foods, Inc., urged the JPML to deny the request and stood behind the safety of their products, indicating the heavy metals were “naturally-occurring”.

The manufacturers also argue it is inappropriate to group the cases against various manufacturers for pretrial proceedings, as the defendants are competitors and sold hundreds of different products containing different ingredients.

“There is no need for this Panel to centralize all of the Underlying Actions into a single multidistrict litigation,” the response states. “The actions against each of the respective manufacturers can be litigated far more efficiently in a single court before a single judge in that defendant’s home district, which is preferable to establishing an industry-wide multidistrict litigation cluttered with different claims against various combinations of named defendants.”

Such consolidation is common in complex product liability litigation, where a large number of product liability lawsuits have been filed over similar injuries caused by the same products. Centralizing the cases before one judge is intended to reduce duplicative discovery into common issues in the cases, avoid conflicting pretrial rulings from different courts and serve the convenience of common witnesses, parties and the judicial system.

The baby food litigation has recently emerged, after the official release of a report by the U.S. House of Representatives Subcommittee on Economic and Consumer Policy early last month, which highlighted internal documents and testing data for products manufactured and sold by Gerber (d/b/a Nestlé Nutrition), Beech-Nut Nutrition, Plum, Hain Celestial Group, Campbell Soup Company, Walmart Inc., Parent’s Choice and Sprout Foods, indicating that many of the widely used baby foods contain elevated and toxic levels of heavy metals.

The House report found some baby foods contained more than 91 times the maximum level of arsenic allowed in bottled water; 177 times the allowable levels of lead, 69 times the limits on cadmium, and five times the levels of allowable mercury.

Although the manufacturers maintain that their products are safe and appropriately labeled, the U.S. Food and Drug Administration (FDA) and U.S. Centers for Disease Control and Prevention (CDC) have long maintained that exposing infants and children to toxic heavy metals can cause a permanent decrease in IQ, an increased risk of future criminal and antisocial behavior, and untreatable and frequently permanent brain damage.

While heavy metals do occur naturally in some foods, like rice and vegetables, 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. However, long term exposure of heavy metals poses serious health concerns for children. Lead exposure at any level is extremely unsafe, and prior studies have linked heavy metal exposure to behavioral impairments, brain damage, damage to the nervous system, seizures, growth impairments, and even death.

Last week, the FDA announced a new action plan, in which it intends to set actionable limits and standards for heavy metals in baby food products for the first time. The agency says it intends to start by setting allowable limit for arsenic and lead, because the two are the best understood of the four heavy metals being targeted.

According to a hearing notice (PDF) issued on April 15, the U.S. JPML is scheduled to hear oral arguments over whether to centralize the baby food lawsuits before on judge during a session on May 27, 2021.