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Baby Food Lawsuits Keep Piling Up After Heavy Metals Report (1)

Feb. 12, 2021, 4:25 PMUpdated: Feb. 12, 2021, 6:31 PM

Campbell Soup Co. and Nurture Inc. join the list of baby food companies hit with consumer lawsuits in the wake of a House subcommittee report concluding that seven major brands contain “significant levels” of heavy metals.

Campbell touts its Plum Organics brand as especially healthful for young children but doesn’t disclose the presence of heavy metals in its product line, making its marketing deceptive, Erin Smid alleges in a suit filed Thursday in the U.S. District Court for the District of New Jersey.

Nurture Inc., too, emphasizes desirable health and nutrition attributes of its Happy Baby line of organic products, Stephanie Soto alleges in a suit filed Thursday in the U.S. District Court for the Southern District of New York.

Not only do Nurture’s products fail to inform consumers they contain heavy metals, “their labels specifically state what harmful elements they do exclude–GMOs, non-organic ingredients, toxic persistent pesticides and packaging made without BPA, BPS, or phthalates,” the suit alleges.

Testing of Nurture’s products has found heavy metal levels above federal safety limits for other kinds of products, the suit alleges.

For example, the Food and Drug Administration has set the maximum allowable arsenic levels in bottled water at 10 ppb of inorganic arsenic. Nurture’s products contain as much as 180 parts per billion inorganic arsenic and more than 25% of their products contained over 100 ppb inorganic arsenic, the suit alleges.

The House Oversight subcommittee report found seven brands of commercial baby food are tainted with “significant levels” of heavy metals, including arsenic, lead, cadmium, and mercury.

Campbell Soup refused to cooperate with the subcommittee, leading to concerns it may be obscuring higher levels of heavy metals in their products than in those of its competitors, Smid’s suit alleges, referencing the report. Rather, they “produced a spreadsheet, self-declaring that their baby food meets unspecified criteria for toxic heavy metals,” the suit alleges.

Even low levels of exposure to heavy metals can cause serious and often irreversible damage to brain development, both suits allege.

“Campbell is confident in the safety and quality of our products,” Amanda Pisano, a Campbell spokeswoman told Bloomberg Law Friday. “The company does not comment on pending litigation, but we do intend to defend this case vigorously,” she said.

Campbell, in response to the report, also has said it cooperated with the committee’s investigation and that it is “surprised that the Committee would suggest that Campbell was less than full partners in this mission.”

The company said it “noted the unfortunate lack of a current FDA standard for heavy metals in baby food. As we told the Committee in our response, our testing showed each product was well within levels deemed acceptable by independent authorities.”

“Nurture, Inc. stands by the quality and safety of all of its products and is proud to have best-in-class testing protocols in our industry,” the company said Friday. “While we do not comment on pending litigation, we intend to vigorously defend this case.”

Gerber Products Co., Beech-Nut Nutrition Co., and Hain Celestial Group Inc. face similar suits.

Causes of Action: Illinois Consumer Fraud and Deceptive Business Practices Act; Illinois Uniform Deceptive Trade Practices Act; unjust enrichment (Campbell); New York General Business Law §§ 349 & 350 (consumer protection statutes); breaches of express warranty, implied warranty of merchantability and Magnuson Moss Warranty Act; negligent misrepresentation; fraud; unjust enrichment (Nurture).

Relief: Injunctive relief; actual damages, statutory damages, punitive damages, restitution, attorneys’ fees and costs (Campbell); Injunctive relief, damages, attorneys’ fees and costs (Nurture).

Potential Class Size: Unknown number of individuals in nationwide class and Illinois subclass (Campbell); Unknown number of persons in class of New York and Wyoming residents (Nurture).

Attorneys: The Shub Law Firm and others represent Smid. Sheehan & Associates PC represents Soto.

The cases are Smid v. Campbell Soup Co., D.N.J., No. 1:21-cv-02417, complaint 2/11/21; and Soto v. Nurture, Inc., S.D.N.Y., No. 1:21-cv-01271, 2/11/21.

(Updated with response from Nurture Inc. in thirteenth paragraph.)

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com