Sweet Potatoes, Shredded Chicken and Inorganic Arsenic?: Food for Thought on the Legal Issues Surrounding Heavy Metals in Baby Food

By Brandon Vogel

Sweet Potatoes, Shredded Chicken and Inorganic Arsenic?: Food for Thought on the Legal Issues Surrounding Heavy Metals in Baby Food

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Sometimes, what’s not on a nutrition label matters the most.

While food safety in America is largely focused on pathogens and bacteria, a bombshell Feb. 4, 2021 U.S. House Subcommittee report found that baby foods can contain arsenic, lead, cadmium and mercury.

In March, the Baby Food Safety Act of 2021 was introduced to Congress in the wake of the House Subcommittee’s report proposing maximum levels for heavy metals that are below the thresholds currently set by many baby food manufacturers.

But is private litigation a faster way than legislation to improve the quality and safety of ingredients for consumers? The proposed legislation and potential litigation were up for discussion on the CLE webinar, “Legal Issues Regarding Heavy Metals in Baby Food and the Baby Food Safety Act.”

How It Happens

Jackie Bowen, executive director of the Clean Label Project, said that in order for baby food brands to create a compliant product they need to have access to compliant ingredients. In order for farmers to create compliant ingredients, they need to have progressive environmental policies that will not allow for the levels of pollution that have contributed to the current problem.

Heavy metals are, to some extent, naturally occurring in the earth’s crust because of mining, fracking and industrial agriculture use of wastewater for irrigation, explained Bowen.

Essentially, pollution ends up in the air, the water in the soil and “unless brands think of food safety differently, they will undoubtedly end up in finished products.”

The focus of the Baby Food Safety Act is on inorganic arsenic, lead, cadmium and mercury. Overall, each of these metals can have long term impacts on health and wellness for children, especially when it comes to brain system and immune system development.

The Michigan native explained how in Flint the drinking water was an average of 25 parts lead per billion. The EPA level for concern is five. The maximum amount of lead that is allowed is 15 parts per billion “but that doesn’t mean 14 parts per billion is good for you; it means that is where you have regulatory interference in order to fix the problem.”

A University of Kansas study found that from 2013 to 2017, the portion of Flint’s third graders who tested as proficient in reading fell from 41% to 10.7%, there was a 12% decrease in fertility, and a 58% increase in fetal death rates, as well as lower birth weights recorded and increased chances of miscarriage.

Now, 1 in 5 students in Flint’ public schools are eligible for special education. The percentage of special education students has increased by 56%.

She said that while lead is regulated in water, it is not currently regulated when it comes to food targeting vulnerable populations. The Centers for Disease Control and Development found that formula is used by 57% of mothers under the age of 30 as compared to just 25% of mothers over the age of 30. Black infants were nearly twice as likely to be fed infant formula than their non-Hispanic white and Mexican-American counterparts.

“It’s especially interesting when you look at infant formula, the most highly regulated food in America, when it comes to nutrition,” said Bowen. “It’s the exclusive form of nourishment for so many babies during that critical period of development.” As formula is mixed with water, the combined and cumulative effects on children are even greater.

The American Academy of Pediatrics, American Medication Association, the World Health Organization,  and Food and Drug Administration (FDA) all say there is no safe exposure to lead, which can lead to long term reduced IQ and downward social mobility.

Eighty percent of best-selling infant formulas are able to achieve five parts per billion of lead or less.

“It is absolutely feasible to create a product that complies with the Baby Food Safety Act when you’re creating an infant formula, as well as a product that’s nutritious and meets the strict nutritional rules of infant formula in the U.S.,” said Bowen. “Regulatory policy needs to be established in order to require these maximum tolerances when it comes to heavy metals. The ingredient supply chain is there; someone just needs to make sure to hold brands accountable to hit these tolerances.”

Legislation or Litigation

Christina Tusan, supervising attorney for the Consumer and Workplace Protection Unit for the Los Angeles City Attorney’s Office, said that New York has some consumer protection laws that prohibit deceptive acts and practices, as well as false advertising.

In 2019, Gov. Andrew M. Cuomo outlined a proposal that would protect New Yorkers from unknown exposure to toxic chemicals. The “Consumer Right to Know Act” would authorize the Department of Environmental Conservation, in consultation with the Department of Health and the Department of State, to develop regulations establishing on-package labeling requirements for designated products indicating the presence of potentially hazardous chemicals, including carcinogens.

With regards to the February report, Tusan said: “Certainly we’re pleased to see the FDA proposing some action following the report and they’ve spoken about sort of a Closer to Zero plan with a goal of reducing levels of arsenic lead, cadmium and mercury and baby foods as much as possible.”

She explained that this is a multi-year plan, but it would establish new standards.

Companies will need to be careful with advertising. Misleading statements such as “free of heavy metals” or a comparative claim, “we have the best record,” are likely to mislead as a standard.

“Any claims that companies make should really have substantiation ready to go, because that’s the kind of thing that can be looked into to determine whether you made a claim that is actually true and what’s your scientific basis for making that claim or your backup for that claim,” said Tusan.

Renée Wicklund, senior of counsel with Richman Law & Policy, said when private litigators approach litigation, they first ask what the consumer wants and second, will this legislation help consumers get what they want.

While there isn’t survey data yet to back this up, “I think we can feel confident that parents and caregivers want baby food without any heavy metals at all.”

At first glance, it might seem like the Baby Food Safety Act is going to help consumers get what they want.

Potential positives of the act include publicity to increase consumer awareness and practical reduction of heavy metals in foods marketed for babies and toddlers. Potential negatives include a false sense of comfort and a preemption of private litigation on behalf of consumers. There may be a belief among consumers that the FDA has handled the situation and eliminated heavy metals from baby foods, she explained.

“The act is going to set tolerance levels for these heavy metals, so we can be asking ourselves, ‘Well, do those tolerance levels reflect scientific consensus? Is there any consensus at all?’” said Wicklund.

The act is directed at cadmium, lead, mercury and inorganic arsenic, but Wicklund noted that there is a middle category, which would include copper and other meals, that are easier to tip over into dangerous levels. “Despite the act, we’re going to remain without a coverage for those.”

The benefits of private litigation, such as a consumer class action or nonprofit litigation on behalf of consumers, can drive the market. Private litigation can actually power a more holistic approach, said Wicklund.

The first step might be prompting the industry giants, such as Campbell’s or Gerber, by demanding better ingredients within their supply chain. “If the purchasers are demanding zero tolerance, the supply chain reaction is a lot better than if Congress is just saying make it so.”

Another benefit of private litigation is protecting the choice of consumers who are aware there’s always going to be some segment of consumers who know about food pitfalls and are willing to pay extra for better choices. Private litigation demands marketplace honesty to protect those choices and can protect the integrity of those labeling machines as well.

Wicklund acknowledged that there has been a wave of class actions that were filed once the February report came out.

“One thing that’s clear is that those actions do highlight existing regulatory gaps when it comes to infant and child food,” said Wicklund. “I would say that private litigation, in the right circumstances, can run ahead of the curve and really serve consumer interests with education, with protection of choice, and with driving the market toward the availability of safer choices or better choices. It makes sense when we’re looking at something like the Baby Food Safety Act to weigh the practical benefits that we will see against the effects on the private litigation that can be helpful in enforcing the rights of consumers.”

From reading the initial complaints, Wicklund surmised that litigants are seeking consumer damages, not damages for injuries.

Is Organic Safer?

The public is more aware that organic does not necessarily mean heavy metal safe, at least not right now. Making your own baby food may not even help and could even be worse.

Tom Neltner, chemicals policy director of the Environmental Defense Fund, said that “the reality is the produce aisle is not monitored, we don’t really know how much is in the produce aisle. FDA is working on some testing.”

He expressed concern that the FDA’s new Closer to Zero Plan looks at each metal individually, not in conjunction with each other. He explained that mercury makes the other chemicals worse. Arsenic and cadmium have an additive effect as well.

“Parents are busy and they really shouldn’t have to worry about these materials,” said Neltner.

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