Heavy Metals in Baby Food? Class Actions Filed Against Gerber, Beech-Nut, Plum [UPDATE]

The proposed class action against Beech-Nut Nutrition Company was dismissed without prejudice on January 19, 2023.

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After the court ordered the consolidation of related cases against Beech-Nut in March 2021, the company moved to dismiss the consolidated complaint in August 2022. United States District Judge David N. Hurd granted the dismissal request in a 13-page memo and order, agreeing with the defendant that primary jurisdiction over the matter covered by the cases—i.e., the regulation of heavy metals in baby food—belongs to the U.S. Food and Drug Administration (FDA), not the court.

In the memo, Judge Hurd said that the FDA’s expertise is needed to properly resolve the plaintiffs’ claims as food safety standards are squarely within the agency’s purview. The judge pointed out that the plaintiffs’ claims “repeatedly” argue that it is the “toxicity” of Beech-Nut’s products that causes harm, rather than the alleged labeling misrepresentations, and therefore concluded that the FDA must hold primary authority.

In the memo, the judge also acknowledged the risk of “inconsistent rulings” if disparate courts are allowed to make individual determinations concerning the claims.

The official judgment closed the file on January 24, and plaintiffs submitted an appeal on February 20.

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A lawsuit filed in Arkansas federal court on August 31 claims Walmart, Inc. failed to disclose that its Parent’s Choice baby foods contain “unsafe” levels of toxic heavy metals.

Echoing the suits filed against other baby food manufacturers, the case claims the mega-retailer misled consumers into believing its products were safe while concealing that the foods potentially contain “dangerous levels” of inorganic arsenic, lead, cadmium and mercury.

According to the lawsuit, which bases its allegations on the findings of the February 2021 congressional report detailed on this page, no reasonable consumer would have purchased Walmart’s baby food products had they known the truth about the foods’ ingredients.

The case proposes to cover anyone in the U.S. who purchased Walmart’s baby food products containing toxic heavy metals,  as well as state-specific subclasses for those who did so in Vermont or Kentucky.

Read ClassAction.org’s full write-up of the case here.

The Judicial Panel on Multidistrict Litigation (JPML) ruled against centralizing the lawsuits detailed on this page, stating in a June 7 order that centralization “is not necessary for the convenience of the parties and witnesses or to further the just and efficient conduct of the litigation.”

While consolidating large numbers of similar cases as part of multidistrict litigation (MDL) has the potential to simplify the proceedings and ensure similar outcomes, the panel noted that the lawsuits at issue here are only similar “[a]t a general level.” Each of the defendants named in the cases has different manufacturing processes, suppliers and quality control procedures, the panel wrote, adding that the claims against each company are likely to succeed or fail based on facts specific to that defendant, such as the amount of heavy metals in their products, internal testing results and marketing practices.

Moreover, the motion to centralize the lawsuits received “numerous and various responses,” with opposition voiced by plaintiffs in 39 of the actions and all of the defendants, the order relays. All told, the JPML was unconvinced that centralization was warranted:

“Given the relatively minimal number of common factual questions, the potential for a multi-defendant MDL to introduce added complexity to this litigation, and the strong opposition of numerous plaintiffs and defendants, we are not persuaded that industry-wide centralization is appropriate,” the panel wrote.

The JPML further argued against centralizing the suits by defendant, noting that centralization should be “the last solution after considered review of all other options.” The panel added that most of the 73 defendant-specific lawsuits have already been transferred to the district where that company is headquartered.

“We believe it is better to allow the parties’ attempts to self-organize play out before centralizing any part of this litigation,” the JPML stated.

On April 8, the FDA released its “Closer to Zero” action plan for reducing toxic elements to “the lowest levels possible” in baby foods.

According to the plan, the FDA aims to propose maximum levels for lead by April 2022 and arsenic by 2024 and finalize these levels in the years thereafter. The plan does not set a timeline for establishing maximum levels of mercury and cadmium in baby foods, which has drawn some criticism. The FDA has noted, however, that because “[t]he availability of data and additional research needs for arsenic, lead, cadmium, and mercury are different,” the agency will begin with proposing maximum levels for lead while evaluating the data for the other heavy metals.

Notably, the heavy metal levels will be issued as a guidance, meaning compliance on the part of baby food manufacturers will be voluntary.

The FDA’s plan comes as the agency has faced political and public pressure to introduce stricter regulations for baby foods following the February congressional report detailed on this page.

Congressmembers Rep. Raja Krishnamoorthi (D-IL), Senator Amy Klobuchar (D-MN), Senator Tammy Duckworth (D-IL), and Rep. Tony Cárdenas (D-CA) introduced on March 25 the Baby Food Safety Act of 2021, which aims to, among other measures, require the FDA to set maximum levels for lead, arsenic, mercury and cadmium and require that manufacturers test their final products for toxic heavy metals.

In its announcement of the Closer to Zero Plan, the FDA has also included reminders to parents, caregivers and consumers regarding how to determine infants’ and children’s nutritional needs, as well as warnings about homemade baby food and formula.

A proposed class action filed April 7, 2021 alleges several of the top baby food manufacturers have not only misled consumers with regard to the safety and quality of their baby food products but have conspired to cover up the alleged fraud and “lull consumers and regulators into inaction.” 

Alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, the sprawling 346-page case out of California claims defendants Plum Organics, Campbell Soup Company, Beech-Nut Nutrition Company, Gerber Products Company, Nurture, Inc. and Safeway Inc. have, in the wake of the several consumer watchdog reports exposing high levels of heavy metals in their baby food products, issued misleading statements, downplayed the results of the reports and even gone so far as to found a supposedly independent research group to “deflect attention away from their ongoing fraud.”

Per the case, the defendants were “more interested in protecting profits than making meaningful changes to eliminate toxic heavy metal contamination” and have harmed hundreds of thousands of American families as a result of their alleged misconduct.

The lawsuit looks to hold the defendants accountable for the alleged misrepresentations of their baby food products and repay consumers for the harm they’ve suffered as a result:

“Defendants should be required to repay the consumers they lied to and stole from—and be subject [sic] whatever regulatory action and criminal indictments that follow in the wake of this case.”

ClassAction.org’s full writeup of the case can be found over on our Newswire.

The plaintiffs in a case similar to the lawsuits detailed on this page have submitted a motion to consolidate all related cases to the Eastern District of New York as part of a multidistrict litigation.

The plaintiffs state in their brief, found here, that they know of 42 other cases—including 38 proposed class actions—filed against baby food manufacturers over the apparent contamination of their products with toxic heavy metals, and they expect more lawsuits to be filed.

According to the brief, the Eastern District of New York is “the most logical and convenient location” for these proceedings, and the actions pending in 12 federal districts all meet the requirements for transfer.

The Hain Celestial Group and Beech-Nut Nutrition have been named in three more lawsuits alleging the companies failed to disclose the presence of toxic heavy metals in their baby food products.

The lawsuit against Hain, found here, looks to cover Massachusetts residents who, within the applicable statute of limitations, purchased the company’s Earth’s Best Organic baby food products, including pouches, purees and snacks, that consist mostly of rice and other ingredients.

A lawsuit filed against Beech-Nut looks to represent anyone in the U.S. who purchased the company’s Beech Nut-Naturals, Beech-Nut Fruities, Beech-Nut Yogurt Melties, Beech-Nut Veggies, Beech-Nut, and Beech-Nut Organics products within the applicable statute of limitations period. A more complete list of covered products can be found on the first few pages of the complaint, found here.

Another lawsuit filed against Beech-Nut looks to represent anyone in the U.S. who, within the applicable statute of limitations period and until the date of class certification, purchased and consumed the following products:

• Beech-Nut Rice Single Grain Baby Cereal
• Beech-Nut Oatmeal Whole Grain Baby Cereal
• Beech-Nut Classic Sweet Carrots
• Beech-Nut Organics Carrots
• Beech-Nut Naturals Sweet Potatoes
• Beech-Nut Classics Sweet Potatoes
• Beech-Nut Classics Sweet Peas
• Beech-Nut Naturals Butternut Squash
• Beech-Nut Organics Pumpkin
• Beech-Nut Organics Apples
• Beech-Nut Naturals Bananas
• Beech-Nut Naturals Beets, Pear & Pomegranate
• Beech-Nut Classics Mixed Vegetables
• Beech-Nut Breakfast On-the-Go Yogurt, Banana & Mixed Berry Blend
• Beech-Nut Organics Sweet Potatoes
• Beech-Nut Organics Pears
• Beech-Nut Organics Apple Kiwi & Spinach
• Beech-Nut Naturals Carrots
• Beech-Nut Organics Pear Kale & Cucumber
• Beech-Nut Oatmeal Whole Grain Baby Cereal
• Beech-Nut Rice Single Grain Baby Cereal
• Beech-Nut Banana Stage
• Beech-Nut Sweet Peas Stage 2
• Beech-Nut Carrots Stage 2
• Beech-Nut Green Beans Stage 2
• Beech-Nut Sweet Potatoes Stage 2
• Beech-Nut Apple Stage 2

More products may be added to the list as the lawsuit progresses. The suit also proposes a subclass of Mississippi residents who meet the above criteria.

Five more proposed class action lawsuits have been filed against baby food manufacturers over the alleged presence of toxic heavy metals in their products.

Beech-Nut Nutrition was named as the defendant in three of the suits, with one case seeking that the court require the company to test its products and disclose the levels of heavy metals in the baby food.

A case filed February 18 looks to cover anyone in the U.S. who purchased Beech-Nut baby foods for household or personal use anytime since January 1, 2017, with state-specific subclasses for those who did so in California and New Jersey.

A lawsuit filed February 22 seeks to represent anyone in the U.S. who purchased or consumed Beech-Nut Naturals Green Beans, Beech-Nut Organic Pears or Beech-Nut Organic Sweet Potatoes for household or business use (and not for resale) anytime between October 1, 2015 and the date of class certification, with a proposed subclass for those who did so in Texas.

The third lawsuit, filed February 25, looks to cover those in the U.S. who purchased Beech-Nut baby food products, as well as a state-specific subclass of those who did so in California.

Two more lawsuits were filed against the Hain Celestial Group over products sold under its Earth’s Best Organic brand.

The first lawsuit, filed February 21, looks to represent Colorado residents who purchased Hain’s Earth’s Best Organic products within the applicable statute of limitations.

The second lawsuit, filed February 22, looks to cover anyone who purchased certain Earth’s Best products in the U.S. during the statute of limitations period, as well as those who did so in New York. The first few pages of the complaint, found here, contain a bulleted list of products covered by the case.

Beech-Nut, Hain, Nurture, Gerber and Plum have been named in another proposed class action out of New York while Nurture alone faces an additional lawsuit.

The case against the five baby food manufacturers was filed by a mother and her one-year-old son and looks to represent anyone who purchased or consumed baby food products made by Beech-Nut, Hain, Nurture (under its Happy Family Organics line), Gerber and Plum within the statute of limitations period.

The lawsuit against Nurture, Inc. looks to cover anyone who, within the applicable statute of limitations period, purchased baby or toddler foods/snacks sold by Nurture that prominently state that the foods are produced by a team of “real [parents or moms], pediatricians & nutritionists on a mission to bring health and happiness to our little ones and the planet” and that “[the Nurture] team creates nutritious meals and snacks.” Also proposed is a subclass of Georgia consumers who meet the same criteria.

The products covered in the suit include, but are not limited to, the following:

• HappyBaby Organic Greek Yogis Blueberry and Purple Carrot
• HappyBaby Organic Superfood Puffs Kale & Spinach
• HappyBaby Organic Superfood Puffs Strawberry & Beet
• HappyBaby Organic Superfood Puffs Apple & Broccoli
• HappyBaby Organic Superfood Puffs Banana & Pumpkin
• HappyBaby Organic Superfood Puffs Sweet Potato & Carrot
• HappyBaby Organic Rice Cakes Apple
• HappyBaby Organic Rice Cakes Blueberry & Beet
• HappyBaby Organic Teethers Pea & Spinach
• HappyBaby Organic Teethers Sweet Potato & Banana
• Happy Baby Oatmeal Baby Cereal
• HappyBaby Oats & Quinoa Cereal

There may be additional products added as the lawsuit progresses. 

Another lawsuit was filed against Beech-Nut Nutrition Company over its apparent failure to disclose the presence of toxic heavy metals in its baby food products while representing that the items were safe and healthy.

“Based on Defendant’s decision to advertise, label, and market its Tainted Baby Foods as healthy, nutritious, and safe for consumption, it had a duty to ensure that these statements were true and not misleading, which it failed to do,” the complaint states.

The lawsuit looks to cover anyone who purchased Beech-Nut’s baby food products in the U.S. for personal/household use during the applicable statute of limitations period, with two state-specific subclasses for those who did so in New York and Pennsylvania.

Gerber Products Company and the Hain Celestial Group have been hit with two more lawsuits filed on February 12 and 13, respectively.

The lawsuit against Gerber looks to represent anyone in the U.S., and a subclass of Texas residents, who purchased or consumed the following products for household or business use within the applicable statute of limitations period: Gerber Rice Single Grain Cereal, Gerber Oatmeal Single Grain Cereal, Gerber Natural Carrot, Gerber Natural Apple Strawberry Banana with Vitamin C, and Gerber Natural Banana Blueberry with Vitamin C.

The lawsuit against Hain looks to represent Illinois and Idaho residents who, within the applicable statute of limitations period, purchased any baby food products under Hain’s Earth’s Best Organic brand, including pouches, purees and snacks that consist mostly of rice and other ingredients.

Three more lawsuits were filed on February 11 against Nurture, Inc., Campbell Soup Company, and Beech-Nut Nutrition Company, respectively, over their apparent failure to disclose the presence of toxic heavy metals, such as arsenic, lead, cadmium and mercury, in their baby food products.

The lawsuit against Nurture, which sells baby food under its Happy Baby Organics brand, concerns flavored rice puffs that the case says the company deceptively represented as safe and healthy for young children despite the fact that the foods contain heavy metals. The suit looks to cover New York and Wyoming residents who purchased the defendant’s flavored rice puffs within the applicable statute of limitations.

The lawsuit against Campbell, which also names its subsidiary Plum, PBC as a defendant, looks to represent anyone in the U.S. who purchased the following products within the applicable statute of limitations period and until the date of class certification:

• Plum Organics Stage 1 Just Peaches
• Plum Organics Stage 1 Just Prunes
• Plum Organics Stage 1 Just Sweet Potato
• Plum Organics Stage 1 Just Mango
• Plum Organics Super Puffs Variety Pack
• Plum Organics Stage 2 Pear Purple Carrot & Blueberry
• Plum Organics Stage 2 Pear Spinach and Pea
• Plum Organics Stage 2 Banana Pumpkin
• Plum Organics Stage 2 Grow Well DHA
• Plum Organics Stage 2 Sweet Potato Apple & Corn
• Plum Organics Stage 2 Banana Zucchini & Amaranth
• Plum Organics Stage 2 Mango Sweet Potato Apple & Millet
• Plum Organics Stage 2 Pumpkin Chickpea Spinach & Broccoli
• Plum Organics Stage 2 Butternut Squash Carrot Chickpea & Corn
• Plum Organics Stage 2 Apple Plum Berry Barley
• Plum Organics Stage 2 Pear & Mango
• Plum Organics Stage 2 Peach Pumpkin Carrot & Cinnamon
• Plum Organics Stage 2 Mango Yellow Zucchini Corn & Turmeric
• Plum Organics Mighty 4 Guava Banana Black Bean Carrot Oat
• Plum Organics Mighty 4 Pear Cherry Blackberry Strawberry Black Bean Spinach Oat
• Plum Organics Mighty Veggie Zucchini Apple Watermelon Barley
• Plum Organics Mighty Veggie Spinach Grape Apple Amaranth
• Plum Organics Mighty Veggie Carrot Pear Pomegranate Oat
• Plum Organics Mighty Morning Banana Blueberry Oat Quinoa
• Plum Organics Mighty Protein & Fiber Pear White Bean Blueberry Date & Chia
• Plum Organics Mighty Protein & Fiber Mango Banana White Bean Sunflower Seed Butter & Chia
• Plum Organics Mighty Protein & Fiber Banana White Beat Strawberry Chia

The lawsuit against Beech-Nut looks to represent anyone who purchased baby food products sold under the “Beech-Nut Naturals,” “Beech-Nut Organics” and “Beech-Nut” brands for household or business use anytime since February 10, 2015, with a proposed subclass covering Wisconsin residents who meet the same description. The products include purees of fruit, vegetables, meat broths and grains sold in jars or pouches; cereals; bars; crisps; and dissolving “melties” snacks. More products may be added as the lawsuit progresses.

Proposed class action lawsuits continue to roll in following last Thursday’s congressional report revealing high levels of toxic heavy metals in popular baby foods.

Gerber and Hain, which makes Earth’s Best Organic baby food, were hit with a proposed class action on February 8, while Hain was named in another proposed class action filed the next day. The cases allege consumers were misled by the companies’ representations and “reasonably believed” that the products were safe and healthy for babies. Meanwhile, Gerber and Hain failed to disclose that their popular baby food products contained levels of arsenic, lead, cadmium and mercury considered to be unsafe for consumption, the suits claim.

The New York Attorney General on February 9 called on the FDA to take action in response to the congressional report described on this page. In a letter addressed to acting FDA Commissioner Dr. Janet Woodcock, New York Attorney General Letitia James urged the agency to implement the suggestions set forth in the report, which included setting standards for heavy metal levels across all baby foods and requiring manufacturers to test their finished products, not just ingredients, for toxic heavy metals. The letter further stated that consumers should be able to “clearly see” on baby food labels the reported levels of heavy metals so they can be fully informed of what they’re feeding their children.

According to the letter, the FDA sets limits on toxic metals in other consumer products, such as bottled water, juice and candy, but has failed to do so when it comes to baby food. Only after “years of effort” has the FDA recently introduced regulations for inorganic arsenic levels in rice cereal for infants, and the allowable level is “notably” 10 times more than the amounts permitted in bottled water, the letter stated. Citing the congressional report, the letter noted that in the absence of regulation, baby food manufacturers have set their own standards for heavy metal levels and at times have even sold food that failed to meet their internal requirements. The effects of these practices pose “serious risks” for the health of our nation’s infants and young children, the letter stated.

“It is critical that our government take immediate action to protect our children from these negative health consequences,” the New York Attorney General wrote, stating she was “deeply concerned” by the report and the government’s “dangerous” lack of regulation in the baby food industry.

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