The House Committee on Oversight and Reform recently released a report showing that seven popular brands of baby foods are contaminated with toxic heavy metals, such as inorganic arsenic, lead, cadmium, and mercury. Both the Food and Drug Administration (FDA) and the World Health Organization (WHO) have deemed these metals dangerous to human health due to the neurotoxic effects. Babies and young children are particularly susceptible—even low levels of exposure to these metals can cause irreversible damage to a child’s brain development.
The House’s Investigation
The U.S. House of Representative’s Subcommittee on Economic and Consumer Policy conducted its investigation in response to other reports indicating the presence of toxic metals in baby foods. On November 6, 2019, the Subcommittee requested internal documents from seven of the largest baby food manufacturers in the United States. Four of the brands that were tested—Nurture, Inc. (makers of HappyBABY), Beech-Nut Nutrition Company, Hain Celestial Group, Inc. (makers of Earth’s Best Organic), and Gerber—responded to the Subcommittee’s requests. These companies produced internal testing policies and test results, as well as documentation concerning how the company handled ingredients or finished products that exceeded their internal testing limits or metals. Walmart, Campbell, and Sprout Organic Foods refused to cooperate with the investigation.
Revealing Widespread Contamination
According to the internal documents and test results of the four cooperating brands, all baby foods manufactured by these companies contained high levels of toxic metals. For example, Beech-Nut used ingredients that tested as high as 913.4 ppb (parts per billion) for arsenic, 886.9 ppb lead, 344.55 ppb cadmium. Over 25% of Nurture’s products contained over 100 ppb arsenic, 20% contained over 10 ppb lead (with some products testing as high as 641 ppb lead), and 65% contained more than 5 ppb cadmium. Gerber’s rice flour tested over 90 ppb arsenic, with many of its ingredients containing 20 ppb lead, and 87 ppb cadmium.
Further, documents revealed that Hain typically only tested its ingredients, not finished products. Its ingredients tested as high as 309 ppb arsenic, 352 ppb lead, and 260 ppb cadmium. By way of comparison, these ppb levels are much higher than those allowed for other products. For instance, the FDA sets the maximum arsenic levels for bottled water at 10 ppb, 5 ppb lead, and 5 ppb cadmium. Of the surveyed companies, only Nurture tested for mercury, with testing indicating the presence of 10 ppb in its products. Although they did not cooperate, independent testing of Walmart, Sprout Organic Foods, and Campbell baby foods indicated concerning levels of toxic metals.
The Subcommittee’s Recommendation
The internal testing standards for each company indicate that they permit dangerously high levels of toxic metals into infant food products. And according to the House Subcommittee’s testing, products containing even higher levels of contamination have also managed to make it to market. This is, in part, due to the FDA’s failure to set standards for most baby food products (except infant rice cereal) while permitting manufacturers to test only ingredients rather than final products. Based on its report, the Subcommittee has recommended that the FDA set maximum levels of metals permitted in baby foods. It further recommends mandatory testing of finished products, comprehensive labeling, and a phase-out of these toxic ingredients.
Likelihood of Lawsuits
The likelihood that these findings will lead to massive lawsuits is a near certainty. The Oversight Committee’s report was released on February 4, 2021, and the first lawsuit was filed on February 5. The complaint, filed against the makers of “Plum Organics” baby food, was brought on behalf of a proposed nationwide class affected by tainted food. The complaint cites the Committee’s report, highlighting Plum’s refusal to cooperate with the investigation. The complaint was filed in the United States District Court for the Northern District of California and seeks compensatory, statutory, and punitive damages. Campbell Soup Company, the owner of Plum, released a statement asserting that every Plum Organics product is tested “to ensure none exceed acceptable levels of arsenic, lead, cadmium, or mercury.” A spokesperson for the company further asserted that Campbell uses standards set forth by “California’s Prop 65, the EU, and the WHO” in light of the “lack of specific FDA guidance on baby food. The complaint, however, argues that “Campbell provided a spreadsheet self-declaring that every one of its products meets criteria but declined to state what those criteria are.”
A similar lawsuit was filed this week against Gerber in New Jersey, alleging that carrots and sweet potatoes used in its formulas contain unacceptable amounts of lead and other heavy metals. Like Campbell, a spokesperson for Gerber defended its products, while seemingly putting the onus on the FDA, “Where government standards don’t currently exist, we develop our own rigorous standards.” It is likely that as more of these lawsuits crop up, baby food companies will continue to cite the FDA’s guidelines to prove their products satisfy all necessary criteria.
Whether this is a winning strategy is to be seen. As long as the FDA does not set a specific standard for heavy metal amounts allowable in baby foods, the door remains open for potential lawsuits filed in response to any heavy metal presence in the products.
Expert Resources for Upcoming Litigation
These early lawsuits are just the beginning of litigation in the wake of this baby food revelation. For the most robust and meticulous analysis of the contaminants and their impact on infant health, attorneys can commission a custom Strategic Research report from our in-house team of physicians. With this comprehensive overview, attorneys can fully assess the breadth of medical implications from the tainted food and strength of association for a potential case.
As cases move down the pipeline, our medical team is also on call for Case Clinics. Attorneys can use this service to review plaintiff medical records, unpack any technical concepts, and efficiently hone in on winning strategies.
