How Public Nuisance Law Could Address Heavy Metals in Baby Food in the Face of Regulatory Failure
by Lillian Matchett*
A cheerful jingle plays as beaming babies flash across a white background. These children are the “Gerber Generation,” the voiceover tells you, and they have some big news to share: the nutrition they get in their first five years of life can affect their health forever. “Think about that,” they say.
Gerber launched its Gerber Generation campaign in 2010 in the face of increased attention on childhood obesity, focusing on the health and nutritional needs of young children at a vital point in their development. Gerber was right: what a child consumes in the first few years of their life is critically important, but as it turned out, there were other substances in at least some of the Gerber Generation’s food that could have a profound and lasting impact on children’s health. In 2021, Gerber was one of several companies exposed for selling baby food containing concerning levels of heavy metals—toxins which, even in small amounts, can cause severe and irreversible cognitive impairment and physical illness in young children.
In 2021, a congressional subcommittee issued two reports finding high levels of heavy metals—lead, arsenic, cadmium, and mercury—in commercial baby foods from seven major manufacturers. Heavy metals were present in baby foods from all companies, often at concentrations many times than that allowed under existing regulations for other food products. The reports also illuminated failures of industry self-regulation, revealing that companies largely do not test their final products and often do not adhere to their own internal standards.
Predictably, a deluge of litigation followed the release of the Congressional Reports. Despite well-documented findings of high heavy metal levels in baby food and the known effects those substances have on children, lawsuits have thus far been mostly unavailing, failing on issues of causation and standing, though many are still making their way through the courts. Regulatory and legislative solutions have also fallen short. The FDA and Congress attempted to address the issue, but the FDA’s response has been slow and unenforceable, while legislation lacks bipartisan support, and has stalled in committee.
Recent Public Nuisance Litigation
While individual plaintiffs and regulators have yet to succeed, there may be an opportunity for local and state governments in public nuisance law. A public nuisance cause of action is established by showing that a defendant knowingly created or assisted in creating a substantial and unreasonable interference with a public right. And in the last half-century, state and local governments have increasingly used public nuisance law to target harm-causing industries and activities, particularly where regulation has failed.
With varying success, public entities have used public nuisance to target the tobacco industry, gun violence, the opioid epidemic, global warming, youth vaping, and, notably, lead poisoning of children from household paints. One of the most high-profile and successful applications of public nuisance law was the tobacco litigation of the 1990s, though the cases concluded when the companies and many states settled to the tune of $206 billion. Then, in the early 2000s, communities across the country started bringing public nuisance suits to hold paint manufacturers liable and fund costly abatement initiatives. Unlike the tobacco litigation of the previous decade, the lead paint claims were actually tested in court. Of these lawsuits, only California’s People v. ConAgra Grocery Products Co. has successfully shown both the existence of a public right and causation.
Before ConAgra, several lead paint cases failed either because the plaintiffs could not show sufficient causation or because the court did not accept that there was a public right to lead-free private residences. For example, courts in Illinois and Missouri required proximate cause, and government plaintiffs failed when they could not identify a specific defendant as the source of lead paint in a specific location. When it came to establishing a public right, other courts held that a the right must concern indivisible resources shared by the public at large, such as air, water, or public rights of way. Therefore, a right that inherently concerned the environments of private homes did not qualify.
The municipalities finally won in ConAgra when a California appeals court upheld a lower court’s finding of paint manufacturers’ liability under a public nuisance theory. The trial court originally awarded $1.15 billion to fund lead paint abatement initiatives, but after the appeals court reversed the award with instructions to recalculate the amount, the parties later reached a settlement of $305 million. In 2018, both the California Supreme Court and the United States Supreme Court denied certiorari petitions filed by the paint manufacturer defendants.
The California courts’ reasoning differed from the previous rulings in several key ways that paved the way for the state’s victory. First, the court found that there was a public right to “housing that does not poison children,” stating that “[r]esidential housing, like water, electricity, natural gas, and sewer services, is an essential community resource.” Second, following California public nuisance precedent, the court did not apply the proximate cause standard for causation, but the substantial factor standard, which is satisfied if “the conduct of a defendant is a substantial factor in bringing about the result.” A “very minor force” may still be a substantial factor if it contributes to the harm. Causation was thus satisfied because the companies’ promotions of lead paint played “at least a ‘minor’ role” in creating the nuisance of lead paint in homes. Finally, the court found that the paint companies had actual knowledge of the harm posed by lead paint in private homes, pointing to information distributed within the paint trade as early as 1910.
Applying Public Nuisance to Baby Food
Following ConAgra, could the State of California successfully sue baby food manufacturers for public nuisance? The theory shows promise and a court may be able to find the public right, actual knowledge, and causation required to hold manufacturers liable. Additionally, such litigation could serve the larger purpose of spurring action among legislators and regulators.
The threshold question in a public nuisance case is whether or not a public right exists. Following the precedent set forth in ConAgra finding a “‘public right’ to housing that does not poison children,” a court could find such a public right to a food supply that does not poison children. Some trends provide additional support for a finding that safe baby food is a public right. In particular, California has moved toward treating food as a right through programs like universal free school meals and was the first state to do so.
The substantial factor test, as defined in ConAgra, would be a low hurdle for the government plaintiffs to clear since plaintiffs bringing a public nuisance claim in California do not need to show a discrete injury. Rather, the defendant’s conduct must have been a factor in bringing about the overall hazardous condition—here, the presence of heavy metals in baby foods. All of the companies identified in the Subcommittee reports engage in some sort of promotion. Therefore, the companies’ promotions were likely at least a “very minor force” in baby food with heavy metals being sold and consumed.
However, causation may be more difficult to show in baby food litigation than in lead paint litigation if the defense can characterize the nuisance as broader than baby food. If the nuisance is the existence of heavy metals in commercial baby food, then it logically follows to hold the manufacturers of that food liable. But if the nuisance is characterized as heavy metals in produce and ingredients, manufacturers may bear less responsibility for causing it. Instead, they can claim to be a mere casualty of a larger issue in our food system. Nevertheless, this argument may be unavailing when considered in light of the fact that manufacturers knew heavy metals were or could be present in their products but continued to produce and sell food containing those toxins, manufacturing a new supply of potentially toxic baby food.
Under ConAgra, actual knowledge is required for a public nuisance claim. Therefore, the question is whether the baby food manufacturers knew that high concentrations of heavy metals would threaten public safety. Even before discovery, there is evidence that some baby food manufacturers knew that the heavy metals present in their baby foods could be hazardous to children’s health. For example, the Subcommittee’s reports alleged that the manufacturers “knowingly [sold baby food containing heavy metals] to unsuspecting parents.” The Subcommittee also singled out one manufacturer, Beech-Nut, stating that the company “knowingly concealed the danger of [arsenic in its products]and allowed parents to unwittingly keep feeding them to their babies.”
The biggest challenge for baby food public nuisance litigation may be fashioning the remedy. In public nuisance cases brought by government plaintiffs in many jurisdictions, including California, the remedy is not damages for past harm but abatement—or remediation—of the nuisance. A heavy metals abatement plan for baby food would need to include an injunction directing the manufacturers to cease producing hazardous baby food, though issuing such an order would be difficult without an applicable regulatory scheme, and there is currently no regulation or legislation with which a court can demand compliance. Plaintiffs could also seek greater oversight of baby food manufacturing or required testing by manufacturers. Abatement funds could also go to public education campaigns about heavy metal poisoning in children and programs to inform parents on how to provide well-rounded nutrition, as variety in a child’s diet can help minimize risk. California could also provide additional benefits to low-income families who consume more commercial baby food than their wealthier counterparts.
Depending on the characterization of the nuisance, addressing the root causes of heavy metals in baby food may be difficult because the issue of heavy metals in the food system is not one the baby food manufacturers created. Therefore, it may be inappropriate to use funds from baby food manufacturers to fund abatement programs that remove heavy metals from the soil. At the same time, abatement is a forward-looking remedy that seeks to eliminate the harm from occurring in the future. Through this lens, funding a cleaner food supply so that baby food can be manufactured safely could mean that soil clean-up is an appropriate part of an abatement remedy.
Even if the abatement remedy for baby food is less concrete than in prior lead paint cases, high-profile public nuisance litigation, especially cases pursued by state attorneys general, can propel issues into the public consciousness and gain the attention of legislators. For example, public nuisance lawsuits over environmental issues in the 1960s and 1970s led to legislation at the state level and, eventually, the Clean Water Act and Clean Air Act. Governmental entities have also strategically used public nuisance legislation against fossil fuel companies in an attempt to spur legislative and regulatory action. If a state like California were to pursue litigation, the publicity could reignite a sense of urgency in our legislative bodies, prodding them to pass legislation like the stalled Baby Food Safety Act.
Conclusion
Recent lead paint litigation has established California as a state particularly amenable to public nuisance claims. It has paved the way for the doctrine’s application to the present crisis of heavy metals in baby food. Faced with regulatory and legislative failure, holding baby food manufacturers liable under a public nuisance theory could bring fresh attention to the issue and spur legislators and the FDA to action. In an age of political polarization and regulatory stasis, public nuisance law can provide a valuable avenue for change and help provide today’s infants and children with a healthier, safer future.
*Lillian Matchett is a 3L at UCLA Law School. This post is an excerpt from a longer paper. Please contact winters@law.ucla.edu to request access to the paper.
On Food Law 