Silent, But Not Deadly

By: Rasheem M. Johnson

Summary: In a case alleging a failure to disclose the presence of toxic heavy metals in baby food, a California federal judge granted in part and denied in part a motion to dismiss. The judge found that plaintiffs have Article III standing and that their cause of action for failure to disclose is not preempted by Federal law.

Key Takeaways: In In re Plum Baby Food Litigation, plaintiffs allege that Plum PBC fails to disclose that its baby food products contain, or have a risk of containing, arsenic, cadmium, mercury and perchlorate. According to Plaintiffs, Plum uses deceptive, unfair and false labeling to obscure the potential presence of toxic metals in its baby food products and charge a price premium for what is labelled and advertised as high quality organic healthy baby food.

Plaintiffs’ allegations are based on a U.S. House of Representatives Subcommittee on Economic and Consumer Policy report which found that Plum, along with six other large US baby food manufacturers, “permit dangerously high levels of toxic metals and… [have] often sold foods that exceed these [dangerously high levels].” Plum moved to dismiss the action arguing that plaintiffs’ claims were preempted by Federal law and they lacked Article III standing. Plum’s preemption argument can be summed up as follows: the FDA regulates the safety and labeling of baby food, and, the FDA has not required warning labels for the presence of heavy metals in baby food. Thus, the state cannot prohibit the same as this creates an “obstacle to the accomplishment of the comprehensive and carefully calibrated federal regulatory program.”

“Just because the FD is silent, doesn’t mean… you should get a pass… [silence] does not create a preemption argument.”

Hon. Yvonne Gonzalez Rogers

The court rejected Plum’s obstacle preemption argument, finding that the FDA is silent on the issue of specific disclosures, and, silence on an issue cannot have preemptive effect. “Plum fails to articulate any specific federal law or regulation with which plaintiffs’ state law claims purportedly conflict.” During the hearing on Plum’s motion to dismiss, the judge noted that “Just because the FDA is silent, doesn’t mean … you should get a pass…[silence] does not create a preemption argument.” With regard to its Article III argument, the court held that “plaintiffs have adequately alleged an injury in fact by alleging that they ‘would have not paid [the purchase price or the price premium] had they known that the Baby Foods included levels of Heavy Metals, perchlorate, and/or undesirable toxins or contaminants.’”  The case will presumably now proceed to discovery.

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