Heavy metals, such as arsenic, lead, cadmium, and mercury, are present in baby foods produced by U.S. baby food manufacturers according to a report released in February by the U.S. House of Representatives Subcommittee on Economic and Consumer Policy. Heavy metals are considered dangerous to human health and are especially concerning for children and babies, who are more susceptible to the neurological effects associated with exposure to heavy metals.
The report found significant levels of heavy metals in baby foods, unleashing a storm of consumer litigation with at least six class action lawsuits currently pending against baby food manufacturers. Initiated in response to reports of high levels of toxic metals in baby food, the report was compiled from internal company documents and test results from four of the largest manufacturers of baby food. Among several recommendations, including labeling and mandatory testing, the report emphasized the importance of the U.S. Food and Drug Administration (FDA) setting limits on allowable levels of heavy metals in baby food.
Currently, the FDA has only one action level for heavy metals in baby food: a 100 ppb inorganic arsenic standard for infant rice cereal. Many argue that this is insufficient, especially given the long-term implications of heavy metal exposure for infants and children. Other government entities have established significantly lower action levels or require warnings on products due to the presence of heavy metals. The European Union has set maximum allowable levels of lead at 20 ppb in baby food, whereas California’s Proposition 65 requires businesses to warn consumers about significant exposures to Arsenic, Cadmium, Lead, and Mercury. In a recently released statement, the FDA emphasized that “FDA scientists routinely monitor levels of toxic elements in baby foods” through the Total Diet Study with the goal of reducing “exposure to toxic elements in foods to the greatest extent feasible.” The FDA also noted that heavy metals present in the environment may enter food through soil, water or air and cannot be completely avoided in fruits, vegetables or grains that are used in baby foods. These reassurances have done little to stem the flood of lawsuits.
Tough Road for Plaintiffs
Although the lawsuits are piling up, it is difficult to tell how successful plaintiffs will ultimately be. Plaintiffs will face significant hurdles in showing damages and outlining solutions for reduction of heavy metals in foods. Further, the resulting damage will be difficult to quantify. Similar lawsuits historically have had a hard time gaining traction and are often dismissed by the court. There are also real questions concerning redressability in this case. As the FDA highlighted in its recent statement, these metals are naturally occurring, and food manufacturers have a limited ability to reduce the presence of heavy metals in the produce and grains used to make foods. While there is a strong emotional appeal behind these lawsuits, it remains to be seen whether the courts will offer a viable solution.