Federal Judges Refuse To Consolidate Baby Food Heavy Metal Lawsuits

Although dozens of different baby food lawsuits have been filed throughout the federal court system, each involving common allegations that products sold by a number of different companies in recent years contain high levels of toxic heavy metals, a panel of federal judges rejected a recent request to consolidate the cases for pretrial proceedings.

The baby food heavy metals litigation emerged earlier this year, following the release of a report from the U.S. House of Representatives Subcommittee on Economic and Consumer Policy in February, 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.

At least 38 unique class action lawsuits have been filed against different manufacturers, which are currently spread throughout a number of different U.S. District Courts nationwide, each involving similar allegations that high levels of arsenic, lead, cadmium, mercury and other heavy metals in baby foods may cause children to suffer long term developmental and neurological problems.

In March, 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.

The manufacturers opposed centralizing the baby food litigation, arguing 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.

Following oral arguments presented in late May, the JPML issued an order denying transfer (PDF) issued on June 7, finding that much of the pretrial practices and discovery would be defendant specific.

“At a general level, these actions are similar. All plaintiffs allege that defendants knowingly sold baby food products containing heavy metals and did not disclose this in their marketing. It is not disputed, though, that each defendant manufactures, markets, and distributes its own baby food products subject to different manufacturing processes, suppliers, and quality control procedures,” the JPML order states. “The claims against each defendant thus are likely to rise or fall on facts specific to that defendant, such as the amount of heavy metals in its products, the results of its internal testing, if any, and its marketing strategies.”

Although the manufacturers maintain 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.

The decision by the JPML means that, for the time being, the cases will continue forward as individual lawsuits without formal coordination.