To explore some of the issues in these cases, FoodNavigator-USA first spoke to Adam Fox, partner at Squire Patton Boggs; and David Kwasniewski, an attorney at BraunHagey & Borden (who are not representing any of the defendants in these cases).

We began by looking at the levels of heavy metals referenced in the lawsuits. To support claims that defendants’ brands contain dangerous levels of heavy metals, for example, all of the lawsuits​​ cite test results outlined in the recent congressional report​​, while some also reference ​a 2019 report called Healthy Babies, Bright Futures​​.

But will it be hard for plaintiff’s attorneys – who don’t appear to have done any of their own testing yet – to show that the specific products purchased by their clients contained the same levels of heavy metals referenced in the above reports? 

Other putative class action lawsuits have attempted to base their allegations on third party studies,” ​noted Fox. ​”But it is a risky strategy because the failure of the studies to be precisely on point, to follow a robust scientific method, and to rule out potential limitations can potentially doom the plaintiffs’ case.”

Kwasniewski added: “Plaintiffs’ attorneys’ failure to conduct their own testing could easily prove fatal to their claims, particularly because it is entirely unclear what trace amounts of heavy metals consumers would tolerate in food.”

‘Virtually everything that grows in the ground or breathes the air will accumulate some small amount of heavy metals’

As for the argument that consumers paid over the odds for the baby foods in question (which is relevant when trying to determine potential damages), said Kwasniewski, “Virtually everything that grows in the ground or breathes the air will accumulate some small amount of heavy metals. This will make it challenging for plaintiffs to proceed on a price premium theory, because there will be no comparator product that is completely free of heavy metals.”

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