On March 4, 2021, we posted “Are Your Baby’s Strained Carrots Safe? Considerations for Manufacturers.” Multiple plaintiffs had filed class action lawsuits in jurisdictions around the country alleging that baby food contained heavy metals and toxins and that manufacturers violated state consumer protection statutes. The US Food and Drug Administration has not set the permissible levels for heavy metals in baby food, nor the testing and labeling requirements. Some plaintiffs wanted the lawsuit to be part of a MDL, but the Judicial Panel on Multidistrict Litigation announced on June 7, 2021, that it will not consolidate the baby food lawsuits. In briefing on the consolidation, manufacturers and some parent groups argued against the MDL because the issues were particular to the cases making consolidation improper. For example, there were issues about the suppliers, testing practices, quality controls, selection of ingredients and additives, packaging, advertising, marketing, and labeling. For now, the cases will proceed on an individual basis.
As a result, manufacturers will defend their respective practices in multiple jurisdictions across the country. This provides each the opportunity to explain why its own standards are appropriate and were followed. However, manufacturers will need to monitor the lawsuits of the other manufacturers for competitors’ arguments regarding the appropriate ingredients, testing requirements, labeling, advertising, etc. Until there is uniformity in the rules, manufacturers need to be aware of competitors’ positions and how juries react in different venues.