Manufacturers Move to Dismiss Toxic Baby Food Class Action

Defendants Campbell Soup Company and Plum PBC filed a motion to dismiss litigation initially filed in February. The dismissal was filed last Thursday in the District of New Jerseyr.

On February 11, plaintiff Erin Smid filed suit against the two defendants on behalf of herself and all others similarly situated. When Campbell purchased Plum in 2013, it represented the company as being a leading organic baby food producer, However, the plaintiff alleged that certain products manufactured by Plum contained toxic heavy metals, metals that were not listed as ingredients on the ingredient label. Many lawsuits were filed against baby food companies in the early months of 2021, after the release of a Congressional report documenting the heavy metals.

Smid asserted that had she known about the heavy metals in the products, she would not have purchased them. She also stated that the ingredient labeling used on Plum products is both “deceptive and misleading.”

The original complaint filed by Smid cited violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, violations of the Illinois Uniform Deceptive Trade Practices Act, and one count of unjust enrichment. Smid sought a trial by jury class certification, actual, punitive, and statutory damages, pre and post-judgement interest, litigation fees, and any other relief deemed necessary by the Court.

Last Thursday, defendants Campbell and Plum filed a motion to dismiss the suit. They detailed in the motion that the now-class action lawsuit “is not the appropriate manner or place to undertake that issue or the task of managing ubiquitous heavy metals in the nation’s food supply.” Rather, the Food and Drug Administration (FDA) is responsible for managing food safety and monitoring the heavy metal levels in the food supply. Because the claims of the suit fall under the primary jurisdiction of the FDA, the defendants contend that the suit should be dismissed in its entirety.

The motion expands on this reasoning by stating that the plaintiffs have not alleged a cognizable injury, that they lack appropriate standing to seek injunctive relief, that their claims should be dismissed as preempted, that they fail to plausibly allege deception, and that their implied warranty claim fails. An additional basis for dismissal is Defendant Campbell’s argument that it is not a proper party and should be dismissed since the allegations in the suit “revolve solely around Plum’s products,” making Plum “the proper entity to defend against claims arising solely from its products.”

The plaintiff is represented by Scott + Scott, Levin Sedran & Berman LLP, Faruqi & Faruqi, Mazie Slater Katz & Freeman LLC, and Shub Law Firm. The defendants are represented in the litigation by Dechert LLP and Harris Beach PCCL.