Beech-Nut Baby Food Heavy Metals Litigation Reinstated on Appeal

Beech-Nut Nutrition Co. consumers on Thursday won reinstatement of deception suits over alleged undisclosed heavy metals in baby foods, as a federal appeals court said the litigation shouldn’t have been dismissed to await regulatory action.

Deferring to the Food and Drug Administration would unnecessarily prolong this litigation by parents who allege they overpaid because Beech-Nut failed to reveal the presence of lead, arsenic, and other heavy metals in various products, the US Court of Appeals for the Second Circuit said in a non-precedential order.

The problem of heavy metals in baby food is pervasive, with all but one of 33 tested brands containing at least two heavy metals, according to a 2023 Bloomberg Law investigation.

Although the FDA is working to set limits for heavy metals in foods, the agency has dropped its initial deadlines, the court said.

The “potential costs resulting from these indefinite delays outweigh any possible benefits that could be obtained from deferring to the agency,” the appeals court said.

The district court’s January 2023 decision relied on the FDA’s then-timeline in its “Closer to Zero” action plan, the appeals court said. The plan aims to establish limits for toxic metals in foods consumed by babies and young children.

At that time, the FDA intended to finalize limits for lead and propose limits for other heavy metals by April 2024, the Second Circuit said.

“But since the district court’s decision, the FDA has abandoned these previously announced timelines,” the appeals court said.

The judges vacated the district court’s dismissal and remanded the case.

The lawsuits against Beech-Nut were among more than 100 filed against baby food companies in the wake of a House subcommittee report that found heavy metals in baby food products made by major US manufacturers.

Circuit Judges Guido Calabrese and Alison J. Nathan, and Judge Sarala V. Nagala, sitting by designation from the US District Court for the District of Connecticut, served on the panel.

Silver Golub & Teitell LLP and Scott + Scott LLP represented the plaintiffs. King & Spalding LLP represented Beech-Nut.

The case is White v. Beech-Nut Co., 2d Cir., No. 23-220, 1/18/24.