Toxic Metals in Baby Food Litigation Growing
Arsenic, lead, cadmium, mercury – all heavy metals you might expect to find in a machine shop, not baby foods. A shocking report was issued February 4 from the House Committee on Oversight and Reform, and based on an investigation, “Healthy Babies Bright Futures,” from a coalition of seven nonprofits interested in environmental health.
The Committee report found unacceptably high levels in 95% of all baby food tested that far exceed these limits such as 177 times the acceptable level of lead, 91 times arsenic, 69 times more cadmium that accepted and 5 times the mercury that is allowed.
Inorganic arsenic, lead, cadmium, and mercury have been declared a danger by the U.S. Food and Drug Administration (FDA) and the World Health Organization (WHO).
The focus of the report was four companies that manufacture baby food – Gerber, Hain, Beech-Nut, and Nurture. Mercury was found in baby food from the latter company. Three others – Walmart, Campbell’s Soup/ Plum, and Sprout failed to disclose information about their baby foods as part of the report.
The levels are so shocking that on March 8, plaintiffs requested the Judicial Panel on Multidistrict Litigation (JPML) create an MDL in New York to gather the 40 plus cases filed so far from 12 different federal district courts.
How Babies Developing Brains Are Effected
Babies eat solid foods at about six months of age. Heavy metals, even trace amounts, can seriously affect the developing brain and that harm can be permanent. Diminished IQ can lead to lower intelligence, antisocial behavior, and diminished future economic productivity.
The new study estimates that arsenic and lead from rice-based foods have resulted in more than one-fifth of 11 million drop in IQ points in young children from birth to 24 months.
Lead exposure at a young age can damage the central and peripheral nervous system resulting in impaired hearing, shorter stature, learning disabilities, and impaired formation and function of blood cells, says one complaint.
There is no safe limit for lead. The Environmental Protection Agency (EPA) regards a safe level in drinking water at zero.
Plum and Campbell refused to cooperate with the Subcommittee or to produce their testing standards or any test results regarding heavy metals in their food. Instead, they “self- declared” that their baby food met some unspecified criteria for toxic heavy metals.
FDA Response to Heavy Metals in Baby Food
The question is where do these heavy metals come from and who is responsible for monitoring the problem?
The problem was uncovered nearly a decade ago with rice. Rice, such as infant rice cereal, rice dishes and rice-based snacks were found to be high in inorganic arsenic, the most toxic form of arsenic.
In addressing the Committee report, the FDA says some elements such as arsenic and lead exist in the environment and may have entered the food supply naturally through soil, water, or air. Even using organic farming practices will not eliminate this concern. Other toxins may be the result of factory farming, pesticides and fertilizers, genetic engineering of food, and past contamination. Air pollution carries metals that fall to earth.
The FDA’s scientists routinely monitor levels of toxins in baby foods, the agency says as well as other foods consumed by adults.
The FDA has set the maximum allowable levels in bottled water at 10ppb (parts per billion) inorganic arsenic, 5 ppb lead, and 5 ppb cadmium. The EPA has an upper allowable level of mercury in drinking water at 2 ppb.
Litigation may focus on whether or not metals can cause autism or ADHD in the child who consumes products with toxic metals.
As of yet, there is no ceiling established by regulators for these toxic chemicals, with the exception of guidance issued on inorganic arsenic in infant rice cereal, which in 2006 was limited to 100 ppb.
With an absence of a specific threshold, plaintiffs who have filed actions so far that point to that absence of a number and claim protection. Food manufacturers are currently free to test only ingredients, not the final product.
Lawsuits So Far Regarding Heavy Metals in Baby Food
At least 10 Lawsuits have been filed in wake of the Congressional Report Detailing ‘Dangerous Levels’ of heavy metals found in baby food.
Erin Smid, of Illinois, is the head of a consumer class action filed on February 11, 2021, [Smid v. Campbell, Plum PBC 1:21-cv-02417, New Jersey]. The Campbell company owns Plum which advertises its philosophy is “Little ones deserve the very best food from the first bite.”
The complaint states that defendants do not list heavy metals as an ingredient on the products’ label nor do they warn of the potential presence of heavy metals in their products. Because of that absence, the products’ labeling is deceptive and misleading, says the complaint.
Count I alleges violations of Illinois Consumer Fraud and Deceptive Business Practices Act. Count II is a violation of Illinois Uniform Deceptive trade practices act. Count III is unjust enrichment.
Gerber and Beech-Nut are also accused of misleading consumers about their baby food. Gerber foods make up about 80 percent of the market and that class action hopes to represent plaintiffs from across the country. Beech-Nut claims its foods are “100% Natural” and that its foods are tested for heavy metals.
Another action in New York filed by 43 plaintiffs over toxic metal contamination in baby products asks that cases be consolidated in New York federal court. New Jersey and Northern California may be filed into an MDL to consolidate more than 40 lawsuits from 38 proposed class actions.
For its part, a number of manufacturers say they are setting their own standards since there are no federal limits or guidance.
Healthybabyfood.org suggests more can be done by manufacturers such as sourcing rice from fields with lower arsenic levels, growing it with natural soil additives that reduce arsenic uptake, and growing rice strains less likely to uptake arsenic. Also, manufacturers can combine rice with other multi-grain products that contain less arsenic.
The consumer coalition urges the FDA to act immediately to establish health-based limits for toxins in infant food and set a protective level testing program similar to the Consumer Product Safety Commission’s action over children’s toys.
Parents have the alternative of making their own solid foods by steaming or blending soft ingredients.
Sources:
House Oversight Congressional Report
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2021-02-04%20ECP%20Baby%20Food%20Staff%20Report.pdf
Healthy Baby report
https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2019-10/BabyFoodReport_FULLREPORT_ENGLISH_R5b.pdf
Food Navigator
https://www.foodnavigator-usa.com/Article/2021/02/16/FDA-weighs-in-on-heavy-metals-in-baby-food-as-lawsuits-pile-up
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