On February 4, the House Subcommittee on Economic and Consumer Policy published a report claiming that baby food products contain “dangerous levels of toxic heavy metals” which it said could cause harm to babies and children, specifically regarding their cognitive development. Days after this announcement, lawsuits began to be filed against Gerber Products Company and Beech-Nut, and later against each company that the report said responded to the subcommittee’s request for testing data and every baby food company mentioned in the report.
In addition to these lawsuits, the report also led to requests that the Food and Drug Administration (FDA) create standards for levels of certain heavy metals for baby foods, including one from New York State Attorney General Letitia James. Although this is not common for foods, there are FDA standards for heavy metal levels in bottled water and some other items.
The FDA responded on March 5 saying that it has sent a letter to baby food manufacturers reminding them they have a responsibility to consider the risks of heavy metals and toxic elements in their manufacturing process. It also explained that the toxic metals are in the environment and make their way into the food supply, specifying that parents could find a similar or greater amount of toxic ingredients when making their own baby foods.
Docket Alarm analytics are able to highlight the emerging lawsuits over time, demonstrating that baby food companies are being sued more than ever in recent weeks.
Docket Alarm Analytics over five major baby food companies, each of the companies mentioned in the House Subcommittee report except Walmart, show that the companies are 150% busier than average during the past three months, with most of the new lawsuits being filed since February 4, 2021. (Walmart was not included in this statistic as it faces a huge variety of litigation, including in connection with the opioid epidemic.)
Previously, it was rare for the group of companies to be involved in more than 10 matters in United States District Courts in a month, but the number for February is over 40 and March is over 20 with more than half the month left for more lawsuits to continue being filed by consumers.
Adding Walmart into consideration does change the Docket Alarm graph significantly because of the additional matters Walmart is involved in. Because of this, the graph of analytics including all six companies does not even show an upward trend at this point.
Lawsuit Types
The lawsuits against baby food companies include a variety of allegations stemming from the report that their baby food products have a small, yet significant, level of heavy metals. Docket Alarm analytics show that the majority of the lawsuits filed in recent weeks are filed under PACER’s fraud case type. These lawsuits claim that the companies, including Gerber Products Company, The Hain Celestial Group, Nurture, Beech-Nut Nutrition Company, Campbell Soup Company, Sprout Organic Foods, and Walmart, have misrepresented themselves by marketing their products as safe for babies when they contain toxic ingredients.
Lawsuits filed as product liability suits in PACER raise a similar complaint, purporting that the products are misrepresented as good for babies without disclosing the possibility of heavy metals. Many of the plaintiffs in these cases claim that the companies should give them damages for potential harm from the products. Other types of lawsuits against the baby food companies regarding the report include those under racketeer or corrupt organization and contract case types.
Gerber Products Company
Docket Alarm data shows that Gerber Products is not consistently involved in many lawsuits. Both Gerber Products and Gerber Products Company are involved as a party in more new lawsuits in February and March 2021 than in the previous two years combined, although they have only received three and 13 lawsuits, respectively, since the House Committee’s report. At least a majority of those new lawsuits were filed by parents on behalf of their children purporting that the company is committing fraud by misrepresenting its products or releasing products that are harming the public. Gerber, which in some of its 33 lawsuits since 2019 is referring to the same company, has not yet been involved in any new lawsuits this year.
With the addition of the cases this year, the majority of the case type for lawsuits Gerber Products Company is involved in are filed as fraud cases. The company is the defendant in 95% of the 22 lawsuits Docket Alarm data shows it has been involved in since the beginning of 2019.
The Hain Celestial Group
The Hain Celestial Group, which produces baby foods under the name Earth’s Best, has seen a significant rise in lawsuits since the beginning of February 2021. The company faced only 2 lawsuits in 2019 and 2020, but has seen 18 lawsuits in February 2021 alone.
Docket Alarm analytics shows the company in two different sections depending on whether the lawsuit refers to the company as “The Hain Celestial Group” or “Hain Celestial Group.” The first has been involved in multiple trademark matters and additional matters including personal injury, wrongful termination, and business lawsuits, with an average of about one lawsuit every other month throughout the last two years, but it has seen seven new filings since the beginning of February. The second, Hain Celestial Group, was only listed in two new filings prior to February, each as the defendant. Its lawsuits also spiked since the report, with 12 lawsuits coming in during February and at least 9 near the beginning of March, as seen on Docket Alarm Analytics graphs below.
Hain Celestial made a statement in response to the allegations in the Congressional report, claiming that the data used by the subcommittee was outdated and that it has been improving its policies and meeting with the FDA. “Nothing is more important to Earth’s Best than the trust and confidence of parents that our organic products provide safe nutrition for healthy babies. Our rigorous internal standards and testing procedures ensure Earth’s Best products meet or exceed the current federal guidelines … Earth’s Best has consistently supported efforts to reduce naturally occurring heavy metals from our food supply and stands ready to assist the Subcomittee’s efforts toward that goal,” the press release said.
In a majority of the previous lawsuits, Hain Celestial Group was represented by its own lawyers, but Jenner & Block is representing them in at least one of their recent lawsuits and it also represented the company in one 2019 lawsuit accusing the company of fraud.
Nurture and Beech-Nut Nutrition Company
Docket Alarm analytics show that both Nuture and Beech-Nut, two of the baby food companies referred to in the House Subcommittee report, were not involved in the beginning of a lawsuit during 2019 and 2020, so their legal landscape changed significantly in February.
Both companies have multiple complaints against them claiming fraud, and additional ones responding to the same report allege the companies have breached contracts, are corrupt, or should be liable for harm caused by their products.
Nurture has been named in 13 new filings, eight in february and five in the beginning of March. The current average rate listed on Docket Alarm is 2.3 lawsuits each week since the first lawsuit was filed.
Beech-Nut Nutrition’s data looks very similar to Nurture’s, partially because some of the lawsuits shown list both of the companies as defendants. Beech-Nut was named in nine new filings in February and 4 so far in March. Along with Nurture, Beech-Nut Nutrition Company has seen 13 new filings since February, however, the company also received four lawsuits under the name Beech-Nut Nutrition.
Many of these baby food companies do not yet have representation in the lawsuits since most of them were filed within the last month and there is still time for a response. Beech-Nut, however, has representation in at least one of its lawsuits after King & Spalding filed an appearance on March 8, 2021.
Campbell Soup Company
Campbell Soup Company has not been involved in as many of the recently filed lawsuits, possibly because, as explained in a Campbell press release, the testing information it reportedly sent to the subcommittee was not published in the report. Campbell did self-publish its letter with responses to the subcommittee and testing information and explained that its products are safe and that heavy metals can get into food products through the environment they are grown in.
The company has not seen a significant increase in lawsuits due to the House subcommittee’s report, but it has had two months in a row that were busier than its average over the two years. The largest part of Campbell Soup Company’s litigation, about a third, consists of lawsuits based on antitrust allegations. A company representative told Law Street Media that it intends to defend the baby food allegations against it “vigorously.” As of the beginning of March, it does not yet have representation in the four related lawsuits against it this year, one filed on February 11 alleging fraud, one filed on February 19 claiming that it is a corrupt organization, and two more alleging fraud on March 10. The company’s subsidiary, Plum PBC, has been named in some of these lawsuits as well.
Walmart and Sprout Organic Foods
Campbell was one of three companies which the subcommittee report said did not respond to its requests asking for heavy metal testing results, the others were Walmart, which manufactures Parent’s Choice baby foods, and Sprout Organic Foods, which produces Plum Organics baby foods. Each of these companies has been listed as a defendant in at least one complaint, but overall litigation trends for both of the companies have not changed significantly.
Walmart receives an average of 2.8 lawsuits a day in United States District Courts, according to Docket Alarm analytics, and that average has been holding steady for the last three months. Recently, litigation against Walmart is fairly consistent with about 100 new lawsuits each month through 2020, but was slightly less predictable in the first half of 2019. The company is the defendant in 99% of the lawsuits it has been involved in, the lawsuits are filed for various causes including personal injury, alleged corruption, and issues with their property.
Sprout Foods is involved in significantly fewer lawsuits, Docket Alarm does not show any cases the company was involved in throughout 2020 or 2019 in District Courts for either Sprout Foods. Because of the lack of litigation previously, its litigation activity did increase in March 2021 when at least one complaint listed the company in a product liability lawsuit complaint against it and other baby food companies.
Conclusion
Many of these baby food companies were not previously involved in much litigation, however, this trend of lawsuits seeking for baby food companies to be more cautious and transparent could change that. It is still too early to notice exponential growth which could occur if many more parents decide they want to be involved in the litigation, but since mid-February lawsuits have consistently rolled in against one or multiple defendants with at least one lawsuit on most weekdays.
This upward trend in litigation matters for many of the companies could also change based on rulings in some of the cases, which are currently spread into various courts, or further information from the House subcommittee or the FDA’s research and decisions on the matter.
