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United States:
Heavy Metals in Baby Food – Congressional Report Unleashes Litigation
July 17, 2021
Husch Blackwell LLP
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Heavy metals such as arsenic, lead, cadmium and mercury are found in baby food made by US baby food manufacturers, according to a report by the US House of Representatives Subcommittee on Economic and Consumer Policy released in February. Heavy metals are considered dangerous to human health and are of particular concern for children and babies, who are more prone to the neurological effects that come with exposure to heavy metals.
The report
The report found significant levels of heavy metals in baby food, sparking a storm of consumer disputes with at least six class actions pending against baby food manufacturers. The report was initiated in response to reports of high levels of toxic metals in baby food and was compiled from in-house documents and test results from four of the largest baby food manufacturers. Along with several recommendations, including labeling and mandatory testing, the report emphasized the importance of the US Food and Drug Administration (FDA) setting limits for allowable heavy metal levels in baby food.
Security standards
Currently, the FDA has only one level of action for heavy metals in baby food: a 100 ppb inorganic arsenic standard for infant rice flakes. Many argue that this is insufficient, especially given the long-term effects of heavy metal exposure on infants and children. Other government agencies have set significantly lower action levels or require warnings on products due to the presence of heavy metals. The European Union has set the maximum allowable lead content in baby food at 20 ppb, while California’s Proposition 65 requires companies to warn consumers of significant exposure to arsenic, cadmium, lead and mercury. In a recent statement, the FDA stressed that “FDA scientists routinely monitor the levels of toxic elements in baby food” through the Total Diet Study with the aim of “reducing exposure to toxic elements in food as much as possible”. The FDA also noted that heavy metals found in the environment can get into food through soil, water, or air and cannot be completely avoided in fruits, vegetables, or grains used in baby food. These assurances have done little to contain the flurry of lawsuits.
Hard way for claimants
Although lawsuits are mounting, it is difficult to gauge how successful the plaintiffs will ultimately be. The plaintiffs are confronted with considerable hurdles to identify damage and to come up with solutions for reducing heavy metals in food. In addition, the resulting damage is difficult to quantify. Similar lawsuits have had a hard time gaining traction in the past and are often dismissed by the court. In this case too, there are real questions of reparation. As the FDA pointed out in their recent statement, these metals occur naturally and food manufacturers have limited options to reduce the presence of heavy metals in the products and grains used to make food. While there is strong emotional appeal behind these lawsuits, it remains to be seen whether the courts will come up with a viable solution.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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