Will Lead Contamination in Baby Food Lead to Lawsuits?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 5, 2017

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Baby FoodFor years, it has been clear to scientists, although not necessarily to the public, that many baby foods contain lead. While manufacturers claim that the lead content of baby food does not exceed safe levels, many scientists question whether there is any amount of lead that children can safely consume.

Ideally, parents would decide for themselves whether they want to take the risk of exposing their babies to food products that contain lead. Unfortunately, the presence of lead in those products is not generally revealed on product labels. A new report from the Environmental Defense Fund (EDF) may encourage more consumers to bring lawsuits based on the failure to warn parents that their children are eating a toxic substance.

EDF Report

The report, published in June 2017, raises concerns because, according to EDF, “even very low blood lead levels can cause behavioral problems and lower IQ” in children. Analyzing data collected by the Food and Drug Administration (FDA) over a period of eleven years, EDF concluded that detectable levels of lead were present in 20% of baby food samples. Only 14% of other food samples contained lead.

Lead was most commonly found in fruit juices marketed for babies, including 89% of grape juice samples. More than half of mixed fruit and apple juice samples contained lead.

Baby foods containing root vegetables were also likely to contain lead, including 86% of sweet potato samples. Lead was also common in certain kinds of cookies, including arrowroot cookies and teething biscuits.

Lead is present in dirt and dust, making it nearly impossible to avoid lead exposure completely. But lead in baby food only increases the risk of harm to babies and young children. In 1993, the FDA established 6 micrograms of lead as a maximum daily intake limit, but the FDA has not updated that limit in light of more recent research.

The Environmental Protection Agency recently estimated that 5% of the nation’s children between the ages of 1 and 7 exceed the 6-microgram daily limit of lead in their diet. The EDF recommends a daily exposure limit of 1 microgram.

Oddly, the FDA established a lead limit of 5 parts per billion in drinking water while setting limits of 50 parts per billion in grape juice and 30 parts per billion in apple juice. While most people probably drink more water than juice, the FDA’s juice limits are based on international standards that are in turn driven by what 95% of the world’s suppliers can realistically achieve. It might be more protective of American consumers if the FDA focused on what properly regulated suppliers in the United States could realistically achieve.

Baby Food Lawsuits

Parents of children with learning disabilities, speech delays, or other cognitive impairments may suspect that their children were adversely affected by exposure to lead in baby food, but proving causation in a lawsuit against food manufacturers is extraordinarily difficult. Advances in research help parents understand the risks posed by elevated lead levels, but proving that lead in baby food caused a cognitive impairment, as opposed to environmental or genetic factors, is a formidable task.

Parents have had success suing landlords who rent apartments that were painted  with lead-based paint. Those lawsuits allege that children are exposed to toxic paint chips and dust and that the exposure accounts for the elevated levels of lead in their blood. However, those lawsuits have failed at least as often as they have succeeded.

Lead in baby food is unlikely to elevate lead levels in blood to the same extent as lead in paint. And given the FDA’s reluctance to impose lower limits of permissible lead content in children’s food, it is difficult for parents to prove that lead in baby food harmed their children.

The Need for Disclosure

Greater success may lie in consumer claims that baby food manufacturers engage in deceptive product labeling by proclaiming the health benefits of baby food without disclosing the potential harm caused by its lead content. Earlier this year, the Court of Appeals for the Ninth Circuit reversed the dismissal of a class action lawsuit against Gerber for misleading product labeling. While that lawsuit did not address lead content, the court concluded that product labels making claims like “as healthy as fresh” could mislead consumers, even if the claims are not demonstrably false, because FDA rules prohibit those claims. Consumers might therefore conclude that a Gerber food is healthier than a competitor’s less expensive food simply because the competitor obeyed the FDA’s directives.

Lawsuits against baby food manufacturers for failing to disclose the presence of lead have generally been unsuccessful, since the amount of lead contamination in baby food does not typically exceed the amount allowed by law. The failure to disclose the presence of lead may be misleading, however, when the label claims that a food product is “healthy” but does not disclose the presence of potentially unhealthy contents. Misleading product labels generally violate federal law.

The potential success of lawsuits against baby food manufacturers for making misleading health claims about products that contain lead is unclear. In the end, parents will have limited ability to protect their children from lead exposure in baby food unless the FDA requires manufacturers to lower the lead content of children’s foods or to disclose their lead content.

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