Kroger Must Fight Metal-Tainted Baby Food Claims: Judge Allows Lawsuit to Proceed

A federal judge in Ohio has denied Kroger's attempt to dismiss a lawsuit accusing the grocery giant of selling baby food contaminated with toxic heavy metals. This is the latest development in a growing number of lawsuits against baby food manufacturers over concerns about heavy metals in their products.

Mothers allege misrepresentation

The lawsuit centers on Kroger's "Simple Truth Organic Rice Rusks Baby Teething Wafers." The mothers who filed the suit, Tasheba Barnett, Adele Hoffman and Chadaela Lovincey, allege that Kroger misrepresented the product as "high quality," "a perfect snack for tiny tummies" and safe. However, they claim the teething wafers contained elevated levels of arsenic, cadmium, lead and mercury.

According to the judge's order, the crux of the case hinges on Kroger's alleged misrepresentation. While the mothers haven't suffered any physical harm from the product, they argue they wouldn't have purchased it if they'd known about the metal levels.

"That type of injury has common law roots and is cognizable under Article III," Judge Douglas R. Cole said in his order. In simpler terms, the judge is acknowledging that the mothers have a legal right to sue because they were deceived by Kroger's marketing.

Kroger's arguments rejected

Kroger argued that the mothers lacked standing to bring the case and that the U.S. Food and Drug Administration should have jurisdiction. These arguments were rejected by Judge Cole, who also pointed out that similar arguments had been dismissed by other courts.

The judge did acknowledge that further legal arguments are needed to determine which state's laws apply to the case. However, he concluded that Kroger could still seek dismissal at a later stage.

Lawsuit follows pattern of heavy metal concerns

This lawsuit is one of many targeting baby food companies over concerns about heavy metals. In February 2021, a U.S. House of Representatives Committee report highlighted dangerous metal levels in baby food from major brands like Gerber and Walmart's Parent's Choice.

Building on these concerns, hundreds of lawsuits against major baby food manufacturers were consolidated in California earlier this year. These lawsuits allege that companies like Gerber and Beech-Nut knowingly sold products containing heavy metals that caused autism and ADHD in children.

The consolidated case will involve "bellwether" trials, where a select few cases proceed first to gauge jury reaction to evidence and arguments. This approach aims to facilitate settlements and streamline the legal process.

The science behind the link

The connection between heavy metals and developmental issues like autism remains a topic of scientific debate. While some studies suggest a possible link, the baby food companies argue the evidence is inconclusive.

The consolidated California case is expected to delve deeper into this debate through expert witness testimony during the discovery process.

Uncertainties remain

While the judge's decision allows the Kroger lawsuit to proceed, the case has a long road ahead. The upcoming legal battles will likely focus on which state's laws apply and the specific evidence surrounding Kroger's knowledge of the metal levels in their baby food.

The consolidated California case faces similar challenges, with the science of heavy metals' impact on children's health playing a central role.

One thing remains clear: the legal fight over heavy metals in baby food is far from over.

Barnett, Hoffman, and Lovincey are represented by Terence R. Coates and Dylan J. Gould of Markovits Stock & DeMarco LLC, Nicholas A. Migliaccio, Jason S. Rathod and Mark D. Patronella of Migliaccio & Rathod LLP and Gary Graifman of Kantrowitz Goldhamer & Graifman PC.

The Kroger metal-tainted baby food class action lawsuit is Tasheba Barnett et al v. the Kroger Co. et al, Case No. 1:22-cv-00544, in the U.S. District Court for the Southern District of Ohio.