Baby Foods Contaminated with Heavy Metals Class Action

Heavy metals, such as inorganic arsenic, lead, cadmium, and mercury are toxic to human beings, and they are particularly so to babies and children. But the complaint for this class action alleges that these substances have been allowed in baby food by certain makers—Gerber Products Company, Beech-Nut Nutrition Company, Nurture, Inc., and Hain Celestial Group, Inc. (Gerber also does business as Nestlé Nutrition, Nestlé Infant Nutrition, or Nestlé Nutrition North America.)

The class for this action is all persons in the US who bought the products of the defendants in this case between the beginning of the applicable limitations period and the date the class is certified.

A flurry of lawsuits against baby food companies seems to have been triggered by a report from a US House of Representatives Subcommittee, revealing the presence of heavy metals in certain baby foods. In connection with this investigation, internal company documents have been exposed and tests have been performed that appear to support the Subcommittee’s findings.

The complaint alleges, “Exposure to heavy metals causes permanent decreases in IQ, diminished future economic productivity, increased risk of future criminal and antisocial behavior in children. Toxic heavy metals endanger infant neurological development and long-term brain function.” According to the complaint, the bad effects may result from “[e]ven low levels of exposure[.]”

An extensive list of the products at issue can be found on page 3 of the complaint, linked below, in a small-print footnote that takes up nearly the entire page.

The baby food market is large and growing, the complaint says, and also growing is a demand for baby food products that are organic or in some way “healthy.”

The complaint quotes Beech-Nut’s website, for example, as saying, “Making high-quality, safe, and nutritious foods for babies and toddlers will always be our #1 priority” and “we’re aware of no higher standards in the industry than ours.” It also claims, “we conduct over 20 rigorous tests on our purees, testing for up to 255 pesticides and heavy metals (like cadmium, arsenic and other nasty stuff).”

It also quotes Gerber as saying, “our farmers are using best in class practices to ensure quality ingredients and minimize the presence of any unwanted heavy metals.”

The complaint discusses figures from the CDC’s Agency for Toxic Substances and Disease Registry (ATSDR) Substance Priority List as well as standards set by the Food and Drug Administration (FDA).

The House Subcommittee report also found that “naturally occurring toxic heavy metal may not be the only problem causing dangerous levels of toxic heavy metals in the baby foods; rather, baby food producers … are adding ingredients that have high levels of toxic heavy metals into their products, such as vitamin/mineral pre-mix.”

Also, some companies were found to have internal standards that set permissible levels of some toxic substances much higher than existing regulatory standards.

The counts include consumer fraud, breach of warranty, and unjust enrichment, among other things.

Flo App Unauthorized Sharing of Personal Data California Class Action

Flo Health makes the Flo Period & Ovulation Tracker, a popular app that has been downloaded more than 165 million times. Users are asked intimate questions and enter detailed data, which Flo promises it will not share with anyone. However, the complaint for this class action alleges that Flo in fact shares the information with what the complaint calls “dozens of third parties, including major advertising companies” such as Facebook and Google.

The class for this action is all natural persons living in California who used the Flo App between June 2016 and the present.

The Flo app is intended to offer women an ovulation calendar, period tracking, help with pregnancy, and wellness and lifestyle features.

When women begin using the Flo app, they are asked to enter a variety of personal and health information. This includes names, dates of birth, and where they live, but they are also asked to answer “survey questions” such as “do you experience any pain during sex?” “how often do you masturbate?” and “are you sexually active during your period?” Flo also asks women to answer private health questions, such as “do you smoke?” and “do you have any chronic diseases?”

Users are also asked to provide daily information, such as whether they had sex, their mood, and health symptoms. Flo implies, the complaint claims, that this information is used “to predict ovulation, aid in pregnancy and childbirth, and provide lifestyle and wellness suggestions, allowing users to ‘take full control of [their] health.’”

Flo assures users that this information will be protected and not shared with third parties. For example, the complaint quotes Flo’s Privacy Policy as stating, in capital letters, that Flo “WILL NOT TRANSMIT ANY OF YOUR PERSONAL DATA TO THIRD PARTIES, EXCEPT IF IT IS REQUIRED TO PROVIDE THE SERVICE TO YOU (E.G. TECHNICAL SERVICE PROVIDERS), UNLESS WE HAVE ASKED FOR YOUR EXPLICIT CONSENT.”

However, the complaint alleges, “These assurances were patently false.” It refers to a February 2019 report published by the Wall Street Journal, which it says revealed that “Flo had spent years disclosing the intimate health data that users entered into the Flo App to dozens of third parties, including major advertising companies” including Facebook and Google, “who were free to use this data for their own purposes.”

The complaint notes that the Federal Trade Commission (FTC) undertook an investigation into Flo Health’s privacy practices and disclosure policies and filed a complaint against the company. In January 2021, it entered into a settlement with Flo, requiring the company to change its practices. Notably, the settlement does not require Flo to stop sharing the information entirely, but to make more accurate disclosures, ask for consent to share information, and “notify third parties that previously received users’ intimate health data to destroy that information.”

Sony PlayStation 5 DualSense Controller Plagued with Drift Class Action

Sony released its Playstation 5 (PS5) in November 2020, along with the associated DualSense Controller. But the complaint for this class action alleges that the much-touted controller is defective. How so? The complaint says that the defect causes “characters or gameplay [to move] on the screen without user command or manual operation of the joystick.” This interferes with the playing of the game.

The Nationwide Class for this action is all persons in the US who bought a PS5 or stand-alone DualSense controller. A Virginia Subclass has also been defined, for persons who bought the items in Virginia.

The controller was originally celebrated when it came out, with the Playstation president and CEO saying it was “the biggest console launch of all time.” The complaint quotes Sony as saying the controller “bring[s] gaming worlds to life” and includes “next-generation features like haptic feedback and dynamic adaptive triggers.”

However, the complaint alleges that the “drift” of character movements and game play “compromises the DualSense Controller’s core functionality.”

The plaintiff in this case, Lmarc Turner, bought a PS5 console on or around February 5, 2021. The complaint says that the controller “began exhibiting drift” on the same day. Turner contacted Sony, and a representative told him to reset the console and game. Turner did this, but it did not help.

According to the complaint, Sony has been aware of the problem because of online and direct consumer complaints, as well as its own pre-release testing. Although the controllers have only been out for less than four months, the complaint alleges there are “now thousands of online complaints…”

Other controllers have previously had drifting problems, including the DualShock 4 controller for the PlayStation 4. The complaint says that “Sony has been on notice of the existence of the drifting problem for years.”

When consumers try to report the problem, the complaint claims, they find that PlayStation’s dedicated portal for PlayStation 5 problems “is experiencing a backlog and redirecting consumers to contact a customer service agent via the contact page for PlayStation support. Customer are experiencing long wait times and having to deal with a maze of pre-recorded phone prompts before finally speaking with an agent…”

Even if the repairs are in-warranty, the complaint says, users have to pay for shipping to send the controller in. Nevertheless, the complaint says, “[r]ecent software and firmware updates did not ameliorate or address the Drift Defect in any way.”

Happy Baby Rice Puffs Heavy Metal Content Class Action

A US House of Representatives Subcommittee on Economic and Consumer Policy has issued a report on heavy metals found in baby food, and this class action is one of several filed in reaction. The complaint alleges that heavy metals are present in the flavored rice puffs made by Nurture, Inc. under the name Happy Baby Superfood Puffs Organic Grain Snack.

The class for this action is all those who live in New York and Wyoming who bought the products during the applicable statutes of limitations.

The Nurture rice puffs are intended for developing children, the complaint says, and marketed as if they were healthy food choices. The front and back labels contain words and phrases such as “Organics,” “Superfood,” “We are a team of real parents, pediatricians & nutritionists on a mission to bring health and happiness to our little ones and the planet,” “25 mg choline per serving to support brain and eye health,” and “Come meet our dedicated team and learn more about our carefully crafted products…”

Also, the complaint alleges that the products’ online and print marketing similarly claim the products are suitable for developing children, with such statements as, “Irresistible in taste and texture, they’re perfect for teaching babies tactility & self-feeding,” “Babies may be ready for our delicious snacks when they can crawl on their hands and knees, without their tummy touching the ground,” and “Mindfully Made: We develop premium organic recipes perfectly matched with your child’s age and stage…”

Despite all this, the complaint alleges that the rice puffs contain “significant levels” of arsenic, mercury, lead, cadmium, and perchlorate.

The Food and Drug Administration (FDA) and the World Health Organization (WHO) have said that arsenic, lead, cadmium, and mercury are “dangerous to human health, particularly to babies and children, who are most vulnerable to their neurotoxic effects.” The complaint claims that “[e]ven in trace amounts found in food, these heavy metals can alter the developing bring and erode a child’s IQ and increase risk of future criminal and antisocial behavior in children.”

The complaint reviews some of the limits set by different entities for these substances and the potential harm the substances can cause. It compares the limits set for food and water to the levels permitted by Nurture’s internal standards, and it alleges that Nurture’s “internal company standards permit dangerously high levels of toxic heavy metals.”

The counts include breaches of warranties, negligent misrepresentation, fraud, unjust enrichment, and violation of New York’s General Business Law.

Principal Life Breach of Fiduciary Duty to Retirement Plans ERISA Class Action

Employee savings and retirement plans are governed by the Employee Retirement Income Security Act (ERISA) and must be managed for the sole benefit of the participants and beneficiaries. The complaint for this class action brings suit against the Principal Life Insurance Company, its Benefit Plans Administrative and Investment Committees, and the members of those committees, alleging that they sometimes served other interests in their handling of the Principal Select Savings Plans.

The class for this action is all participants in the Principal Select Savings Plan for Employees or the Principal Select Savings Plan for Individual Field, from August 1, 2015 to the present.

The two plans here are the Principal Select Savings Plan for Employees (the Plan) and the Principal Select Savings Plan for Individual Field (the Field Plan).

The two committees (administrative and investment) make decisions about what the plans will pay and the parties they will pay it to. The company’s CEO appoints the members of these committees. The committees are not therefore independent of the company. The complaint alleges, “The Plan Committees ensured that nearly all investments and vendors for the Plans were Principal affiliates.”

The plans together have over a billion dollars in assets. According to the complaint, “Billion-dollar plans pay an average investment management fee of 25 basis points and median total plan fees of 30 basis points.” (A basis point is 0.0001 of an amount.) They are able to negotiate good fees because they are so large. However, the complaint claims that the plans paid “substantially more” than these fees—too much, it suggests, for such large funds.

The complaint also asserts, “Principal affiliates act as the primary investment advisor for the pooled separate accounts in which the Plans invest. Principal affiliates charge a high investment advisor fee for that service.”

But this is not necessary, the complaint claims, because the affiliates hire subadvisors to do the actual work of portfolio management; Principal then keeps a portion of the fees. Instead, the complaint suggests, the plans could hire the subadvisors directly, cutting out Principal’s role as middleman and thereby saving the money it takes as its cut. This, the complaint says, could provide “millions of dollars of annual savings.”

The complaint alleges that Principal and the other defendants in this case did not fulfill their fiduciary duties—first, because they “maintain[ed] a vendor relationship with Principal for administrative services whereby the Plans paid, directly or indirectly, higher than reasonable fees to Principal for such services” and second, because all the investment options except the Principal Common Stock Fund were pooled investment funds “established and marketed by Principal.”

Geisinger, Evangelical Community No-Poach Agreement Class Action

This class action takes issue with a no-poach agreement allegedly made between Geisinger Health and Evangelical Community Hospital in central Pennsylvania. The complaint alleges that the no-poach agreement reduced competition for healthcare workers in the area and suppressed mobility and wages in that market.

The class for this action is all natural persons who worked at Geisinger Health or Evangelical Community Hospital as healthcare workers between May 2015 and the time the anticompetitive conduct stops.

The complaint quotes guidance issued in September 2019 by the Department of Justice’s (DOJ’s) Antitrust Division: “When companies agree not to hire or recruit one another’s employees, they are agreeing not to compete for those employees’ labor…. Under the antitrust laws, the same rules apply when employers compete for talent in labor markets as when they compete to sell goods and services.”

The complaint claims that the agreement was made “at the highest levels of their organizations, through secret verbal exchanges that were later confirmed by e[-]mails…” It claims they also agreed to keep the agreement secret from their employees—who were most affected by them—and from the general public.

The complaint alleges that the agreement began in May 2015, and possibly earlier, and that it covered doctors, nurses, psychologists, and other professionals. It continued at least until August 5, 2020, when the DOJ brought a civil antitrust action to stop Geisinger from acquiring part of Evangelical.

According to the complaint, the DOJ’s objections included that the acquistion “would fundamentally reduce competition for healthcare services and raise the likelihood of continued unlawful coordination between” the two. The DOJ claimed that the companies had a record of “picking and choosing when to compete with each other” and cited the no-poach agreement between the companies’ senior executives.

Although the companies’ websites advertise “competitive” compensation packages, the complaint alleges that this is not true since they declined to compete with each other. The usual result of this is less-than-competitive wages.

The complaint alleges that the companies monitored compliance with the agreement and, when violations were found, asked the other company to stop the competitive behavior.

According to the complaint, it was the DOJ’s investigation of the proposed acquisition and its publication of the resulting DOJ complaint that revealed the existence of the no-poach agreement.

The complaint alleges, “The No-Poach Agreement is a per se unlawful restraint of trade under federal antitrust laws” and also violates Pennsylvania’s state laws.

Facebook and Google Secret Advertising Agreement Antitrust Class Action

Digital advertising is big business now, expected to total $198 billion in 2021. The complaint for this antitrust class action brings suit against Facebook, Inc. and Google, LLC (along with its parent company, Alphabet, Inc.), saying that the two should be vigorous competitors for advertising yet claiming that they are not. The case centers on an agreement between the two companies and their alleged agreement to allocate elements of the market and not to compete against each other.

The class for this action is all persons who bougth digital display advertising through Google Ads, Amazon DSP, or another non-Facebook demand-side platform to reach consumers in the US between September 2018 and the present.

The complaint opens with a startling statement: “In 2019, spending in the United States on digital, online advertising reached $129.34 billion, exceeding for the first time the total spent in the US on all forms of traditional print, radio, television and billboard advertising.”

About a third of the amount is spent on search advertising, which is mostly Google’s business. The remaining two-thirds is display advertising, with images, banners, and videos placed on websites. Advertisers with material they want to post come together with publishers with space to sell on ad exchanges. The transactions take place on the ad exchanges at high speed.

Facebook, Google, and, to a much lesser extent, Amazon control around 79% of this “open display” market with their ad exchanges. Google has the Google Display Network (GDN), which is part of Google Ads, and Facebook has the Facebook Audience Network (FAN). These two exchanges handle around 67% of the open display advertising spend.

Facebook and Google should thus be fierce competitors, but the complaint says that this is not true. The complaint alleges that the two companies “conspired to allocate to onoe another the advertisers and publishers affiliated with each network and to eliminate competition between them in the open display advertising market. … Facebook agreed to bid FAN’s demand through Google’s ad exchange, rather than directly through multiple exchanges using a competing technology called ‘header bidding.’”

Where’s the gain for Facebook? The complaint claims that in return, it “received (i) preferential treatment over other bidders, including a guaranteed ‘win rate’; (ii) superior information about the advertising opportunity, including the identity of the user most of the time; and (iii) increased ‘timeouts’ for Facebook to bid before it was excluded from the auction…” All of these advantages allowed Facebook to bid and win more often compared to other bidders.

The complaint alleges that this kind of agreement violates the Sherman Act, an antitrust law. In fact, the complaint reports that ten state attorneys general filed a complaint against Google on December 16, 2020. A January 17, 2021 article in the New York Times, called “Behind a Secret Deal Between Google and Facebook,” further reported on the agreement.

Bella Elevator Biometrics Collection for Clocking In BIPA Illinois Class Action

In recent years, more and more employers have had employees provide biometric identifiers or information for timekeeping or other job-related purposes. Illinois is one of the few states that has begun to try to regulate the collecting, storing, and use of biometrics, through its Biometric Information Privacy Act (BIPA). The complaint for this class action alleges that Bella Elevator, LLC has not followed the requirements of this law in collecting the biometrics of its employees.

The class for this action is all individuals who, while living in Illinois, had their fingerprints collected, captured, or otherwise obtained or stored by Bella.

Biometric information presents problems that other private or identifying information does not. If your credit card information is stolen, you can get another credit card with a different number. However, if someone steals your fingerprints, you cannot get another set of fingers with different prints.

The complaint ticks off a number of provisions in BIPA for the collection, storage, and use of biometrics in Illinois:

  • Private entities collecting biometrics must inform the subject, in writing, of the specific purpose and length of time for which the biometrics will be used.
  • These entities must also publish written retention schedules, which are publicly available, providing guidelines for the permanent destruction of biometrics on file with them. (Permanent destruction must take place, at the longest, three years after the entity’s last interaction with the individual.)
  • In storing, transmitting, and otherwise handling biometrics, entities must use the same standard of care and methods that are at least as protective as those used with other confidential and sensitive personal information.
  • Finally, BIPA forbids entities from selling, renting, trading, or otherwise profiting from the biometrics of individuals.

Unfortunately, the complaint alleges that Bella Elevator did not do these things. Plaintiff Ashton Culp worked for Bella between April and June of 2019, and was required to clock in and out using his fingerprints.

“Yet,” the complaint contends, Bella “never adequately informed [Culp or others] of its biometrics collection practices, never obtained the required written authorization from [Culp or others] for the collection and use of the biometrics, and never offered [Culp or others] any access to retention or destruction policies regarding the biometrics collected.

The complaint asserts, “By collecting [Culp’s] unique biometric identifiers or biometric information without his consent, written or otherwise, [Bella] invaded [Culp’s] statutorily protected right to privacy in his biometrics.”

The two counts in the complaint both relate to the requirements of BIPA.

Truli “Vanilla” Almondmilk Vanilla Content Class Action

When is “Vanilla” not vanilla? The complaint for this class action brings suit against Moran Foods, LLC, which operates the Save-A-Lot grocery stores, for its “deceptive labeling, marketing, and sale” of its Truli Vanilla Almondmilk, alleging that the product is not flavored with any real vanilla.

The class for this action is all individual Massachusetts consumers who bought the Truli Vanilla Almondmilk during the applicable statute of limitations.

The Truli Vanilla Almondmilk’s front label shows the word “Vanilla” in a bold font.

According to the complaint, Moran “has misled … reasonable consumers to believe the Product contains ‘Vanilla’ as the ingredient that provides for the Product’s characterizing vanilla flavor.” However, the complaint claims that this is not true, because “the Product contains ‘natural flavors,’ as the ingredient that provides for the Product’s characterizing vanilla flavor.”

In fact, the complaint claims that Moran’s “deception flows from the fact that the Product does not disclose, on the Product’s front label, that the Product is a vanilla-flavored product that does not contain vanilla as an ingredient.” The complaint alleges that this means that the product’s labeling does not comply with labeling requirements under federal and Massachusetts laws.

The Food, Drug, and Cosmetic Act (FDCA) regulates much about sales of food products to the general public. The complaint alleges, “The FDC deems a food ‘misbranded’ if its labeling is ‘false or misleading in any particular.’” Similarly, the complaint quotes the Massachusetts Food Code as saying, “Food shall be offered for human consumption in a way that does not mislead or misinform the consumer[.]”

In fact, Massachusetts law incorporates by reference the federal laws on food labeling, says the complaint.

Under the law, the ingredient panel must list ingredients “by common or usual name in descending order of predominance.” According to the complaint, the ingredient panel does not list “vanilla extract” or the like; it merely asserts the presence of “natural flavors.” “Therefore, by law,” the complaint says, Moran “must disclose that the Product is flavored on the Product’s front label. [Moran] has failed to make such a disclosure and therefore is not in compliance with the law.”

The complaint asserts that the “natural flavor” listed in the ingredient panel “does not consist of vanilla…. Instead, the scientists … would have isolated proteins from the vanilla bean’s cells and tissue or extracted oils or essences from the vanilla bean.” But this is not sufficient, the complaint claims; “because those isolated compounds may not taste like vanilla, the scientist would have combined those extractions with any other extractions from other plants and animals to create a flavoring substance that tastes like vanilla.”

The sole count in the complaint is unjust enrichment.

Earth’s Best Baby Foods Arsenic, Cadmium, Lead Content Class Action

Earth’s Best brand baby foods are made by Hain Celestial Group, Inc. But who would imagine that a baby food might include heavy metals? The complaint for this class action alleges that certain of its Earth’s Best baby food products contain heavy metals, “including inorganic arsenic, cadmium, and lead at levels above what is considered safe for babies…”

The class for this action is all persons in Ohio who bought and consumed the products at issue from the beginning of the applicable limitations period through the date the class is certified in this case. The products at issue in this case include the following, although others may be added in Discovery:

  • Stage 1: Baby Chicken & Chicken Broth
  • Stage 2: Sweet Potato and Chicken Dinner
  • Stage 2: Chicken & Rice

The Earth’s Best website is quoted in the complaint as saying the company “ensures a high degree of attention on to both ingredient and product quality and safety—from procuring, handling, storing, blending, and packaging through distributing Earth’s Best products to our consumer.”

Page 5 of the complaint shows images of two jars of Earth’s Best baby foods. The jars for the products bear the words “organic” and “nurturing baby the purest way[.]” Nothing suggests or admits the presence of heavy metals.

According to the complaint, the baby food market is “exploding,” with a particular increase in baby food that is organic or otherwise “healthy” in some way.

How do we know that the baby food contains heavy metals? The complaint points to a report from a US House of Representatives Subcommittee on Economic and Consumer Policy, which it says showed that baby foods made by Hain are contaminated with “significant” levels of the heavy metals.

The complaint alleges, “Exposure to heavy metals causes permanent decreases in IQ, diminished future economic productivity, and increased risk of future criminal and antisocial behavior in children. Toxic heavy metals endanger infant neurological development and long-term brain function.”

Also, the complaint cites the subcommittee’s findings on the amounts of heavy metals Hain has allowed into its baby food, including permitting lead levels that “surpass every existing standard for lead…” and not even testing for mercury. It compares these levels with various standards for permissible levels of these substances and notes the various kinds of damage that the substances can cause in human beings.

The counts include violations of the Ohio Consumer Sales Practices Act and unjust enrichment.