In February 2021, the U.S. House of Representatives subcommittee on Economic and Consumer Policy released a report on the levels of heavy metals found in baby foods and the respective manufacturers. The report findings described "significant levels of toxic heavy metals" based on internal documents and test results submitted by baby food companies. Lawsuits quickly followed, including many actions against Gerber Products Co., that allege Gerber falsely and deceptively failed to disclose the presence of unsafe levels of heavy metals in their baby foods.
Gerber argues in a recent motion to dismiss (see filing; Law 360 subscription required) that the primary jurisdiction doctrine should control. For background, the primary jurisdiction doctrine is a judicial doctrine used when courts and an agency have concurrent jurisdiction, but the court favors administrative discretion and expertise in deciding the issue. In this case, Gerber argues that the Food and Drug Administration (FDA) is in a better position to decide "acceptable levels of heavy metals in baby foods" because of the need for expertise in issues of infant nutrition.
Gerber further alleges that Plaintiff's claims are preempted by the Food, Drug, and Cosmetic Act (FDCA). Gerber argues that Plaintiff's demand for mandatory disclosures on packaging is preempted by FDA because it is the Agency's role to establish national policy on food safety and labeling. Finally, Gerber says the Plaintiffs fail to plead deception, pointing to a lack of misleading statements on their packaging and no legal requirement to disclose heavy metals on a product label.
Keller and Heckman will continue to monitor and report on this litigation and any responsive regulatory actions or developments.
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Nestlé S.A. is the world's leading agri-food group. Net sales break down by category of products as follows:
- powdered and liquid beverages (26.7%): soluble coffees (Nescafé and Starbucks brands), coffee in capsules (Nespresso), chocolate drinks (Nesquik, Milo, etc.), tea drinks (Nestea), etc.;
- pet food (20.3%): brands such as Purina, Friskies, Felix, etc.;
- pharmaceutical, nutrition and well-being products (16.4%): nutritional supplements (Resource, Boost, Nutren, Optifast, Peptamen brands, etc.), infant and maternal nutrition products (NAN, illuma, Cerelac, Nido, Gerber), ketogenic beverages (BrainXpert), (Nesquick, Fitness, Cheerios, Lion, etc.), etc.;
- ready meals and seasoning products (12.5%): frozen and chilled dishes (Lean Cuisine, Hot Pockets and Stouffer's brands), soups (Maggi), etc.;
- dairy products and ice cream (11.8%): powdered milk, sweetened condensed milk, yoghurt and cream desserts, ice cream (Nido, Nesvita, Carnation, La Laitière, Coffee Mate, Nestlé Ice Cream, Dreyers, Häagen-Dazs, Extrême brands, etc.);
- chocolates, sweets and biscuits (8.7%): Kit Kat, Smarties, Cailler, Terrafertil, etc. brands;
- bottled waters (3.6%): Nestlé Pure Life, Vittel, Perrier, S. Pellegrino, etc. brands.
Net sales are distributed geographically as follows: Switzerland (1.2%), France (3.8%), the United Kingdom (3.8%), Germany (2.4%), Europe (12.8%), the United States and Canada (35%), China (5.9%), Asia and Oceania (21.4%) and Latin America (13.7%).