On March 4, 2021, we posted “Are Your Baby’s Drained Carrots Safe? Considerations for Manufacturers. Several plaintiffs had filed class actions in jurisdictions across the country alleging that baby food contained heavy metals and toxins and that the manufacturers had violated state laws on consumer protection. The United States Food and Drug Administration has not set allowable levels of heavy metals in baby foods, or requirements for testing and labeling. Some plaintiffs wanted the lawsuit to be part of an MDL, but the Judicial Panel on Multidistrict Litigation announced on June 7, 2021 that it would not consolidate the baby food lawsuits. In the presentation on consolidation, manufacturers and some parent groups spoke out against MDL because the issues were specific to cases making consolidation inappropriate. For example, there were issues regarding suppliers, testing practices, quality controls, selection of ingredients and additives, packaging, advertising, marketing and labeling. For now, cases will proceed on an individual basis.
As a result, manufacturers will defend their respective practices in multiple jurisdictions across the country. This gives everyone the opportunity to explain why their own standards are appropriate and have been followed. However, manufacturers will need to monitor other manufacturers’ lawsuits for competitor arguments regarding appropriate ingredients, testing requirements, labeling, advertising, etc. Until there is uniformity in the rules, manufacturers should be aware of the positions of competitors and how juries react in different places.
Copyright © 2021 Womble Bond Dickinson (US) LLP All rights reserved.Revue nationale de droit, volume XI, number 166