When the U.S. House of Representatives Subcommittee on Economic and Consumer Policy released a report earlier this year alleging widespread heavy metal contamination of some of the nation’s most popular brands of baby food, the lawsuits came almost as quickly as the outrage. Stemming from the expectation that “the food they feed their infants and toddlers [is] free from heavy metal substances known to have significant and dangerous health consequences,” a variety of class action lawsuits were filed in courts across the country.
Most would likely have expected that the breadth of the lawsuits combined with the subject matter would have set the stage for a MDL, or multi-district litigation. Efforts to combine the various lawsuits into one MDL, however, have encountered opposition – and it’s not just from the defendants.
At a recent hearing of a Judicial Panel on Multidistrict Litigation, lawyers for some plaintiffs argued against the creation of the MDL just as hard as the corporations in the crosshairs. “There’s nothing to be gained from consolidating cases against different manufacturers in a single MDL,” said one plaintiff’s attorney. Another said that the case was “not shaping up to be a traditional mass tort on the personal injury side.”
Lawyers for the food manufacturers seized on the chaos. “The majority of the parties, including all defendants and 11 separate groups of plaintiffs, oppose the creation of an industrywide MDL,” said a lawyer speaking on behalf of Hain. Nestle, Gerber, and Beech-Nut were some of the other well-known names present at the hearing.
Much of the defense will likely stem from the fact that baby food manufacturers assert that there is very little federal guidance when it comes to acceptable levels of heavy metals and other toxic components in baby food. In their initial reaction to the release of the House’s report, Campbell Soup noted that their manufacturing standards “used standards from California’s Proposition 65, the EU, and the WHO, along with general guidance from the FDA on lead not specific to baby foods – to develop a testing protocol for evaluating whether heavy metals in Plum Organics’ products exceeded levels that independent authorities had determined to be acceptable.”