Beech-Nut Baby Food Heavy Metals Suits Must Await FDA Action

The Food and Drug Administration—not a court—has the primary responsibility to evaluate heavy metals in baby foods, a federal judge said, dismissing proposed class suits against Beech-Nut Nutrition Co. for the time being.

Plaintiffs allege Beech-Nut didn’t adequately test its products for heavy metals such as lead and arsenic, didn’t disclose their presence in its products, and continues to sell baby foods with dangerous levels of toxic heavy metals that can cause developmental harm.

The suits, pending in the US District Court for the Northern District of New York, were among many proposed class actions against baby food companies that followed a February 2021 House Oversight subcommittee report that found seven brands of commercial baby food contain heavy metals such as arsenic and lead.

A recent Bloomberg Law investigation showed that all but one of 33 baby food products purchased in stores and online contained at least two of three heavy metals: lead, arsenic, and cadmium.

Beech-Nut consumers said they overpaid for the products and sought money damages. The plaintiffs sought to stop Beech-Nut from selling any baby food unless all heavy metals are removed or it makes “full disclosure” on product labels. They also sought to keep the company from suggesting the foods are safe for consumption, and an order requiring Beech-Nut to test its finished products.

But resolution of the claims depends on technical and policy considerations within the FDA’s field of expertise, Judge David N. Hurd said in his Jan. 20 ruling. He dismissed the cases without prejudice.

Contrary to plaintiffs’ assertion that this case is a “garden variety” false advertising case, their claims repeatedly assert that Beech-Nut’s products are “unsafe” to consume and that it is the products’ underlying toxicity, not the label statements themselves, that cause any alleged injuries, the court said.

While the issue of whether a company misled consumers may be within the conventional experience of the court, resolving plaintiffs’ claims first requires a determination on whether the levels of heavy metals in Beech-Nut’s products is harmful, which is within the FDA’s field of expertise, Hurd said.

Such claims can’ be resolved “unless and until the FDA determines action levels for heavy metals in baby food,” he said.

Potentially Moot

Additionally, food safety standards are within the FDA’s authority and discretion. Congress has delegated to the FDA the responsibility for protecting public health by ensuring the safety of the food supply, Hurd said..

The FDA has confirmed its intent to establish reference levels for exposure to toxic elements from foods and provide action levels for lead, arsenic, cadmium, and mercury, the court said. The agency is currently is working on its action plan, which identifies the steps it will take in the coming years to reduce exposure to heavy metals in baby foods, the court said.

Gerber Products Co. also won a recent dismissal motion based on deferral to the FDA, as did Sprout Foods Inc.

Plum PBC got a proposed class suit dismissed by a federal court in New Jersey, which said plaintiffs lacked standing to sue because they couldn’t show that they were financially harmed by their purchases. Plum still faces a proposed class suit in the Northern District of California.

Scott + Scott and others represented the plaintiffs. King & Spalding represented Beech-Nut.

The case is Thomas v. Beech-Nut Nutrition Co., N.D.N.Y., No. 1:21-cv-00133, entered 1/20/23.

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