Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 1 of 45
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`
`LAURA PEEK, Individually and on Behalf
`of All Others Similarly Situated,
`
`1:21-cv-0167 (TJM/ML)
`Case No. ___________________
`
`Plaintiff,
`
`v.
`
`CLASS ACTION COMPLAINT
`
`BEECH-NUT NUTRITION COMPANY,
`
`DEMAND FOR JURY TRIAL
`
`Defendant.
`
`1.
`
`Plaintiff Laura Peek (“Plaintiff”), individually and on behalf of all others similarly
`
`situated, by and through her undersigned attorneys, brings this Class Action Complaint against
`
`Defendant Beech-Nut Nutrition Company (“Beech-Nut” or “Defendant”), for its negligent,
`
`reckless, and/or intentional practice of misrepresenting and failing to fully disclose the presence
`
`(or material risk of) heavy metals in its baby food sold throughout the United States. Plaintiff
`
`seeks both injunctive and monetary relief on behalf of the proposed Class (as defined herein),
`
`including requiring full disclosure of all such substances in its marketing, advertising, and labeling
`
`and restoring monies to the members of the proposed Class. Plaintiff alleges the following based
`
`upon personal knowledge as well as investigation by her counsel, and as to all other matters, upon
`
`information and belief (Plaintiff believes that substantial evidentiary support will exist for the
`
`allegations set forth herein after a reasonable opportunity for discovery).
`
`NATURE OF THE ACTION
`
`2.
`
`Parents like Plaintiff trust manufacturers like Defendant to sell baby food that is
`
`safe, nutritious, and free from harmful toxins, contaminants, and chemicals. They certainly expect
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`1
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`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 2 of 45
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`the food they feed their infants and toddlers to be free from Heavy Metals and Perchlorate,
`
`substances known to have significant and dangerous health consequences.1
`
`3.
`
`Consumers lack the scientific knowledge necessary to determine whether the
`
`Defendant’s products do in fact contain (or have a material risk of) Heavy Metals and Percholate
`
`or to know or ascertain the true nature of the ingredients and quality of the Products. Reasonable
`
`consumers therefore must and do rely on Defendant to honestly report what its products contain.
`
`4.
`
`A recent report by the U.S. House of Representatives’ Subcommittee on Economic
`
`and Consumer Policy, Committee on Oversight and Reform reveals that parents’ trust has been
`
`violated (the “Subcommittee’s investigation”). Ex. 1. The Subcommittee’s investigation of the
`
`seven largest baby food manufacturers in the United States, including Defendant, was spurred by
`
`“reports alleging high levels of toxic heavy metals in baby foods” and the knowledge that “[e]ven
`
`low levels of exposure can cause serious and often irreversible damage to brain development.” Ex.
`
`1 at 2.
`
`5.
`
`As the Subcommittee noted, its investigation disclosed Defendant’s “reckless
`
`disregard for the health of babies.” Id. at 43.
`
`6.
`
`Defendant knows that its customers trust the quality of its products and that they
`
`expect Defendant’s products to be free of Heavy Metals and Perchlorate. It also knows that certain
`
`consumers seek out and wish to purchase premium baby foods that possess high quality ingredients
`
`free of toxins, contaminants, or chemicals and that these consumers will pay more for baby foods
`
`they believe possess these qualities than for baby foods they do not believe possess these qualities.
`
`7.
`
`As such, Defendant’s promises, warranties, pricing, statements, claims, packaging,
`
`labeling, marketing, advertising, and material nondisclosures (hereinafter collectively referred to
`
`
`1 As used herein, the phrase “Heavy Metals” is defined as arsenic, cadmium, lead, and mercury.
`
`2
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`

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`as “Marketing” or “Claims”) (hereinafter collectively referred to as “Marketing” or “Claims”)
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`center on representations and pictures that are intended to, and do, convey to consumers that their
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`baby food, including its Contaminated Baby Foods,2 possess certain qualities and characteristics
`
`that justify a premium price.
`
`8.
`
`No reasonable consumer seeing Defendant’s Marketing would expect the
`
`Contaminated Baby Foods to contain Heavy Metals, Perchlorate, or other undesirable toxins or
`
`contaminants. Furthermore, reasonable consumers, like Plaintiff, would consider the mere
`
`inclusion of Heavy Metals, Perchlorate, or other undesirable toxins or contaminants a material fact
`
`when considering what baby food to purchase.
`
`9.
`
`Defendant intended for consumers to rely on its Marketing, and reasonable
`
`consumers did in fact so rely. However, Defendant’s Marketing is deceptive, misleading, unfair,
`
`and/or false because, among other things, the Contaminated Baby Foods include undisclosed
`
`Heavy Metals, Perchlorate, or other undesirable toxins or contaminants.
`
`10.
`
`Defendant’s Contaminated Baby Foods do not have a disclaimer regarding the
`
`presence of Heavy Metals or other undesirable toxins or contaminants that would inform
`
`consumers that the Contaminated Baby Food contain Heavy Metals and Perchlorate and/or that
`
`Heavy Metals and Perchlorate can accumulate over time in a child’s body to the point where
`
`poisoning, injury, and/or disease can occur.
`
`
`2 The phrase “Contaminated Baby Foods” collectively refers to products sold under the “Beech-
`Nut Naturals,” “Beech-Nut Organics,” and “Beech-Nut” brands, including but not limited to the
`products listed in paragraph 20. These products include purees of fruit, vegetables, meat broths,
`cereals, fruit and vegetable purees, bars, crisps, and dissolving snacks marketed as “melties.”
`Plaintiff reserves her right to include in this action any products sold by Defendant deemed to
`contain Heavy Metals and Perchlorate following discovery.
`
`3
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`11.
`
`Defendant’s wrongful Marketing, which includes misleading, deceptive, unfair,
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`and false Marketing and omissions, allowed it to capitalize on, and reap enormous profits from,
`
`consumers who paid the purchase price or a price premium for Contaminated Baby Food that was
`
`not sold as advertised. And Defendant continues to wrongfully induce consumers to purchase its
`
`Contaminated Baby Food that are not as advertised.
`
`12.
`
`Plaintiff brings this proposed consumer class action individually and on behalf of
`
`all other members of the Class (as defined herein) who, from the applicable limitations period up
`
`to and including the present, purchased for use and not resale any of Defendant’s Contaminated
`
`Baby Foods.
`
`JURISDICTION AND VENUE
`
`13.
`
`This Court has original jurisdiction over all causes of action asserted herein under
`
`the Class Fairness Act, 28 U.S.C. § 1332(d)(2), because the matter in controversy exceeds the sum
`
`or value or $5,000,000 exclusive of interest and costs and more than two-thirds of the Class resides
`
`in states other than the state in which Defendant is a citizen and in which this case is filed, and
`
`therefore any exemptions to jurisdiction under 28 U.S.C. §1332(d)(2) do not apply.
`
`14.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391, because Plaintiff
`
`suffered injury as a result of Defendant’s acts in this district, many of the acts and transactions
`
`giving rise to this action occurred in this district, and Defendant conducts substantial business in
`
`this district and is headquartered in this district. Defendant has intentionally availed itself of the
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`laws and markets of this district, and Defendant is subject to personal jurisdiction in this district.
`
`THE PARTIES
`
`15.
`
`Plaintiff is, and at all times relevant hereto has been, a citizen of the state of
`
`Wisconsin. She purchased the Contaminated Baby Foods, various flavors of Defendant’s organic
`
`jarred purees, such as the Beech-Nut Organics Banana & Cinnamon & Granola, and of
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`4
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`Defendant’s pouches, such as the Beech-Nut Organic Apple, Sweet Potato, Pineapple & Oat, for
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`her children generally from Target. Plaintiff first purchased the Contaminated Baby Foods in
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`approximately 2009 and last purchased the Contaminated Baby Foods in approximately May 2019.
`
`16.
`
`Plaintiff believed she was feeding her children healthy, nutritious food during the
`
`time she purchased and fed her children the Contaminated Baby Foods. Due to the false and
`
`misleading claims and omissions by Defendant, she was unaware the Contaminated Baby Foods
`
`contained any level of Heavy Metals or Perchlorate and would not have purchased the food if that
`
`information had been fully disclosed.
`
`17.
`
`As the result of Defendant’s negligent, reckless, and/or knowingly deceptive
`
`conduct as alleged herein, Plaintiff was injured when she paid the purchase price or a price
`
`premium for the Contaminated Baby Foods that did not deliver what they promised. She paid the
`
`purchase price on the assumption that the labeling of the Contaminated Baby Foods was accurate
`
`and that it was free of Heavy Metals and Perchlorate and safe to ingest. Plaintiff would not have
`
`paid the money had she known that the Contaminated Baby Foods contained excessive degrees of
`
`Heavy Metals and Perchlorate. Further, should Plaintiff encounter the Contaminated Baby Foods
`
`in the future, she could not rely on the truthfulness of the Marketing, absent corrective changes to
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`the packaging and advertising of the Contaminated Baby Foods. Damages can be calculated
`
`through expert testimony at trial.
`
`18.
`
`Defendant Beech-Nut Nutrition Company is incorporated in Delaware with its
`
`principal place of business located at 1 Nutritious Place, Amsterdam, New York. Defendant
`
`formulates, develops, manufactures, labels, distributes, markets, advertises, and sells the
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`Contaminated Baby Foods under the Beech-Nut name throughout the United States. Defendant
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`5
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`created, allowed, negligently oversaw, and/or authorized the unlawful, fraudulent, unfair,
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`misleading, and/or deceptive labeling and advertising for the Contaminated Baby Foods.
`
`19.
`
`The Marketing for the Contaminated Baby Foods, relied upon by Plaintiff, was
`
`prepared, reviewed, and/or approved by Defendant and its agents at its headquarters in New York
`
`and was disseminated by Defendant and its agents through marketing, advertising, packaging, and
`
`labeling that contained the misrepresentations alleged herein. The Marketing for the Contaminated
`
`Baby Foods was designed to encourage consumers to purchase the Contaminated Baby Foods and
`
`reasonably mislead the reasonable consumer, i.e., Plaintiff and the Class members, into purchasing
`
`the Contaminated Baby Foods. Moreover, the quality control, manufacturing and packaging of the
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`Contaminated Baby Food occurred in New York as Defendant’s production facility was located in
`
`New York throughout the Class Period.
`
`20.
`
`The Contaminated Baby Foods include all flavor profiles or varieties in the
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`following product lines:
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`a) Beech-Nut Naturals® Purees, which includes 24 different types of purees of
`
`fruits and vegetables, including:
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`
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`6
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`b) Beech-Nut® Organics, which includes 16 different types of purees of fruits,
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`vegetables and grains, including:
`
`
`c) Beech-Nut® Stage 1 and Stage 2 Purees, which includes 26 different purees
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`of fruit, vegetables, broth, meats and grains, including:
`
`
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`7
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`d) Beech-Nut® Naturals Pouches, which includes 6 types of fruit and vegetable
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`purees sold in squeezable pouch form, including:
`
`
`e) Beech-Nut® and Beech-Nut Organics Cereals, which includes 4 types of
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`infant cereal blends under Beech-Nut® and Beech-Nut Organics brand names,
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`including:
`
`
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`8
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`f) Beech-Nut® Fruities, Veggies and Breakfast Pouches, which includes 14
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`different types of baby food pouches as “Fruities,” “Veggies” and “Breakfast”
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`purees that contain various combinations of fruits, vegetables, and yogurt,
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`including:
`
`
`g) Beech-Nut Naturals® Bars, which includes 4 types of toddler snack bars
`
`containing combinations of fruit, grain and vegetables under the Beech-Nut
`
`Naturals® Brand, including:
`
`
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`9
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`h) Beech-Nut® and Beech-Nut Naturals® “Melties,” which includes 4 types of
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`dissolving baby snacks as “melties” under the Beech-Nut® and Beech-Nut
`
`Naturals® brands, including:
`
`
`i) Beech-Nut Naturals® Baked Cheese Bites and Baked Veggie Crisps:
`
`
`FACTUAL ALLEGATIONS
`
`
`
`I.
`
`A Congressional Investigation Found the Presence of Heavy Metals in Baby Foods
`
`21.
`
`On February 4, 2021, the U.S. House of Representatives’ Subcommittee on
`
`Economic and Consumer Policy, Committee on Oversight and Reform, published a report
`
`10
`
`

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`detailing its findings that Heavy Metals—including arsenic, cadmium, lead, and mercury—were
`
`present in “significant levels” in numerous commercial baby food products. Ex. 1.
`
`22.
`
`Defendant was one of the baby food manufacturers from whom the Subcommittee
`
`requested and obtained internal documents and test results. The investigation found the following
`
`with respect to heavy metals:
`
`a)
`
`Arsenic: Defendant “used ingredients after they tested as high as 913.4 ppb
`
`arsenic” and “routinely used high-arsenic additives that tested over 300 ppb
`
`arsenic to address product characteristics such as ‘crumb softness.’” Id. at 3.
`
`“Beech-Nut set internal arsenic and cadmium standards at 3,000 ppb in additives,
`
`such as vitamin mix, and 5,000 ppb lead for certain ingredients like BAN 800.
`
`These standards are the highest of any responding manufacturer.” Id. at 4.
`
`b)
`
`Lead: Defendant “used ingredients containing as much as 886.9 ppb lead. It used
`
`many ingredients with high lead content, including 483 that contained over 5 ppb
`
`lead, 89 that contained over 15 ppb lead, and 57 that contained over 20 ppb lead.”
`
`Id. “Internal testing data from Gerber, Nurture, Beech-Nut, and Hain
`
`demonstrate that all four companies sold products or used ingredients with
`
`significant amounts of lead. Only Nurture routinely tested its finished product for
`
`lead. Hain, Beech-Nut, and Gerber did not test their finished products, only their
`
`ingredients. All companies, whether they test their final products or merely their
`
`ingredients, sold baby foods even when they or their ingredients contained unsafe
`
`levels of lead.” Ex. 1 at 22 (emphasis added).
`
`c)
`
`Cadmium: Defendant “used 105 ingredients that tested over 20 ppb cadmium.
`
`Some tested much higher, up to 344.55 ppb cadmium.” Id.
`
`11
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`d)
`
`23.
`
`Mercury: Defendant “do[es] not even test for mercury in baby food.” Id. at 4.
`
`The investigation found that, when baby food manufacturers were left to self-
`
`regulate and establish their own Heavy Metals standards, they routinely failed to abide by their
`
`own standards and that the “[i]nternal company standards permit dangerously high levels of toxic
`
`heavy metals,” and manufacturers, like Defendant, “have often sold foods that exceeded those
`
`levels.” Id.
`
`24.
`
` Indeed, Defendant’s “standards [were] the highest [i.e., least stringent] of any
`
`responding manufacturer.” Id.
`
`25.
`
`In its conclusion, the Subcommittee stressed the danger associated with the
`
`presence of Heavy Metals in baby food: “These toxic heavy metals pose serious health risks to
`
`babies and toddlers. Manufacturers knowingly sell these products to unsuspecting parents, in spite
`
`of internal company standards and test results, and without any warning labeling whatsoever.”
`
`Id.at 58.
`
`II.
`
`Perchlorate Presents Additional Serious Risks to Infants and Children
`
`26.
`
`Perchlorate “is a rocket fuel component used since the Cold War.”3 The dangers of
`
`perchlorate in human food are recognized by the FDA.4 It “disrupts thyroid functions crucial to
`
`brain development,” yet “[l]evels in children’s food [have] increased dramatically” in recent
`
`years.5
`
`
`3
`at
`Report,
`Futures
`Bright
`Babies
`Healthy
`https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2020-
`04/BabyFoodReport_ENGLISH_R6.pdf (last visited Feb. 9, 2021).
`4
`2004-2005,
`Food
`in
`FDA,
`Exploratory
`Survey Data
`on
`Perchlorate
`https://www.fda.gov/food/chemicals/exploratory-survey-data-perchlorate-food-2004-2005
`5 Healthy Babies Bright Futures Report, at 8.
`
`Available
`
`at:
`
`8.
`
`12
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`27.
`
`Test “results suggest a prevalence that could pose risks during pregnancy and
`
`infancy.”6 One lab “detected it in 19 of 25 foods tested,”7 including in food manufactured and sold
`
`by Defendant:8
`
`---
`
`
`
`
`Despite the presence, or ever increasing risk of presence, of Perchlorate in its
`
`28.
`
`Contaminated Baby Foods, the cornerstone of Defendant’s labels and marketing is its “Natural”
`
`ingredients. The presence, or risk of presence, of Perchlorate is directly contrary to Defendant’s
`
`“Naturals” promise.
`
`III. Defendant Falsely Marketed Its Contaminated Baby Foods as Healthy While
`Omitting Any Mention of Heavy Metals or Perchlorate
`
`29.
`
`Defendant packages, labels, markets, advertises, formulates, manufactures,
`
`distributes, and sells its Contaminated Baby Foods throughout the United States, including New
`
`York.
`
`30.
`
`Defendant is aware that “parents know that what they feed their baby will have a
`
`lifelong impact” and touts that it is aware of “scientific research” that “confirm[s] those instincts.”9
`
`
`
`6 Id.
`7 Id.
`8 Id. at 19, 20.
`9 https://www.beechnut.com/blog/baby-eats-now-matters-lot/ (last accessed Feb. 9, 2021).
`
`13
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`31.
`
`Defendant’s uses its trademarked slogan “Real Food For Babies” because
`
`Defendant knows that parents desire to serve healthy, uncontaminated food to their infants and
`
`children.10 Defendant repeatedly touts its commitment to and use of organic and non-GMO
`
`ingredients in its products, including the Contaminated Baby Foods.
`
`32. While Defendant encourages consumers to “read the front AND the back of the
`
`label, so you know exactly what’s inside your baby’s food,”11 it fails to disclose the inclusion of
`
`Heavy Metals or Perchlorate altogether on its packaging.
`
`33.
`
`Based on Defendant’s decision to advertise, label, and market its Contaminated
`
`Baby Foods as appropriate for various “stages” of development, it had a duty to ensure that the
`
`statements and messaging portrayed on the labels were true and not misleading.
`
`34.
`
`The Contaminated Baby Foods are available at numerous retail and online outlets.
`
`The Contaminated Baby Foods are widely advertised, and Defendant even publishes a blog that it
`
`links to on its site for “Infant Nutrition.” That blog includes the claim: “We know how important
`
`it is for parents to feel good about what they feed their babies, so Beech-Nut goes the extra mile.”12
`
`35.
`
`As discussed above, the Marketing of the Contaminated Baby Foods during the
`
`Class period also failed to disclose that they contain or are at risk or containing any level of Heavy
`
`Metals, Perchlorate, or other undesirable toxins or contaminants. Defendant intentionally omitted
`
`these contaminants in order to induce and mislead reasonable consumers to purchase its
`
`Contaminated Baby Foods.
`
`
`10 https://www.beechnut.com/ (last accessed Feb. 9, 2021).
`11https://www.beechnut.com/blog/label-decoder-natural-organic-means-babys-food/ (last
`accessed Feb. 9, 2021)
`12https://www.beechnut.com/blog/label-decoder-natural-organic-means-babys-food/ (last
`accessed Feb. 9, 2021)
`
`14
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`36.
`
`Defendant claims that they have been testing their ingredients for Heavy Metals
`
`and other contaminants since 1985, are “aware of no higher standards in the industry than [theirs],
`
`and that it goes “above and beyond ‘the standard.’”13
`
`37.
`
`However, Defendant does not test its food for mercury and has among the lowest
`
`standards in the industry for lead and cadmium. Ex. 1 at 33, 37-38.
`
`38.
`
`As a result of Defendant’s omissions, a reasonable consumer would have no reason
`
`to suspect the presence of Heavy Metals or Perchlorate in the Contaminated Baby Foods without
`
`conducting his or her own scientific tests or reviewing third party scientific testing of these
`
`products.
`
`IV. Defendant’s Marketing Misled and Deceived Consumers
`
`39.
`
`Defendant’s Marketing wrongfully conveys to consumers that its Contaminated
`
`Baby Foods have certain superior quality and characteristics that they do not actually possess.
`
`40.
`
`For instance, although Defendant misleadingly causes consumers to believe its
`
`Contaminated Baby Foods do not contain Heavy Metals or Perchlorate through its Marketing and
`
`omissions, the Contaminated Baby Foods do in fact contain undisclosed Heavy Metals, which is
`
`material information to reasonable consumers.
`
`41.
`
`For example, the following foods were tested and found to contain undisclosed
`
`Heavy Metals at the following levels:14
`
`
`13 https://www.beechnut.com/food-quality-safety/ (last accessed Feb. 9, 2021).
`14 The following chart represents the levels of Heavy Metals in Defendant’s products included in
`the Healthy Babies Bright Futures Report, dated October 2019. Available at:
`https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2020-
`04/BabyFoodReport ENGLISH R6.pdf (last accessed Feb. 8, 2021).
`
`15
`
`

`

`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 16 of 45
`
`Arsenic
`(total,
`ppb)
`
`Arsenic
`(inorganic,
`ppb)
`
`Lead
`(ppb)
`
`117
`
`86
`
`3.5
`
`Food
`
`Rice Single Grain Baby
`Cereal - Stage 1, from about
`4 months
`
`Classics Sweet Carrots - 2
`
`Classics Sweet Carrots -
`Stage 2
`
`Organics Just Carrots -
`Stage 1
`
`Naturals Just Sweet Potatoes
`- Stage 1, from about 4
`months
`
`Organics Just Sweet
`Potatoes - Stage 1, from
`about 4 months
`
`Classics Sweet Potatoes -
`Stage 2, from about 6
`months
`
`Classics Sweat Peas - Stage
`2
`
`Beechnut Naturals Just
`Butternut Squash - Stage 1
`
`Organic Just Pumpkin -
`Stage 1, from about 4
`months
`
`<2.1
`
`<2.2
`
`2.8*
`
`2.4*
`
`3.8*
`
`2.8*
`
`6.3*
`
`< 2.2
`
`2.6*
`
`Organic Just Apples - Stage
`1, from about 4 months
`
`< 2
`
`Naturals Bananas - Stage 1,
`from about 4 months
`
`< 2.1
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`--
`
`Cadmium
`(ppb)
`
`5.4
`
`6.8
`
`8
`
`Mercury
`(total,
`ppb)
`
`0.582
`
`0.15
`
`0.212*
`
`1.4*
`
`0.142*
`
`4
`
`0.136
`
`27.215*
`
`23.5
`
`1.3*
`
`14.1
`
`7.3*
`
`2.7
`
`<0.142
`
`24.1
`
`3.4
`
`<0.138
`
`1.1*
`
`1.3*
`
`4
`
`1.6*
`
`1.2*
`
`1.1*
`
`< 0.138
`
`< 0.139
`
`< 0.139
`
`< 0.5
`
`< 0.5
`
`< 0.126
`
`< 0.5
`
`< 0.5
`
`< 0.136
`
`
`15 An “*” indicates that test results were estimated, between the limit of detection and the limit of
`quantitation.
`
`16
`
`

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`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 17 of 45
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`Arsenic
`(inorganic,
`ppb)
`
`Lead
`(ppb)
`
`Cadmium
`(ppb)
`
`0.9*
`
`17.9
`
`4.7
`
`8.6
`
`Food
`
`Naturals Beets, Pear &
`Pomegranate - 2
`
`Arsenic
`(total,
`ppb)
`
`< 2.2
`
`Classics Mixed Vegetables -
`Stage 2
`
`< 2.2
`
`Classics Chicken & Chicken
`Broth - 1
`
`< 2.2
`
`Classics Turkey and Turkey
`Broth - Stage One
`
`< 2
`
`Breakfast On-the-Go
`Yogurt, Banana & Mixed
`Berry Blend - Stage 4 from
`about 12 months
`
`< 2.2
`
`--
`
`--
`
`--
`
`--
`
`--
`
`Mercury
`(total,
`ppb)
`
`< 0.139
`
`< 0.139
`
`< 0.5
`
`< 0.5
`
`< 0.137
`
`1*
`
`< 0.5
`
`< 0.128
`
`0.7*
`
`< 0.5
`
`< 0.139
`
`
`
`42.
`
`Defendant’s Marketing wrongfully fails to disclose to consumers the presence of
`
`Heavy Metals and Perchlorate in its Contaminated Baby Foods.
`
`43.
`
`Based on Defendant’s Marketing, a reasonable consumer would not suspect the
`
`presence of Heavy Metals or Perchlorate, nor would a reasonable consumer be able to detect the
`
`presence of Heavy Metals or Perchlorate in the Contaminated Baby Foods without conducting his
`
`or her own scientific tests or reviewing scientific testing conducted on the Products.
`
`44.
`
`Reasonable consumers must and do rely on Defendant to honestly report what its
`
`Contaminated Baby Foods contain.
`
`45.
`
`In light of Defendant’s Marketing, including its “comprehensive” quality controls,
`
`Defendant knew or should have known the Contaminated Baby Foods contained Heavy Metals
`
`and Perchlorate.
`
`46.
`
`Defendant intended for consumers to rely on its Marketing, and reasonable
`
`consumers did in fact so rely.
`
`17
`
`

`

`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 18 of 45
`
`47.
`
`Defendant had a duty to ensure the Contaminated Baby Foods were as they were
`
`represented and not deceptively, misleadingly, unfairly, and falsely marketed.
`
`48.
`
`Pursuant to the foregoing, Defendant’s Marketing is deceptive, misleading, unfair,
`
`and false to Plaintiff and other consumers, including under the consumer protection laws of
`
`California.
`
`49.
`
`Defendant acted negligently, recklessly, unfairly, and/or intentionally with its
`
`deceptive, misleading, unfair, and false Marketing and omissions.
`
`V. Why Defendant’s Marketing and Omissions are Misleading
`
`50.
`
`At all times during the Class Period, Defendant knew or should have known the
`
`Contaminated Baby Foods contained Heavy Metals and Perchlorate and were not sufficiently
`
`tested for the presence of Heavy Metals and Perchlorate.
`
`51.
`
`Defendant’s Contaminated Baby Foods had a risk of containing Heavy Metals and
`
`Perchlorate due to Defendant’s failure to monitor for their presence in the ingredients and finished
`
`products, and Defendant’s use of ingredients that exceed its own lax internal guidelines for some
`
`Heavy Metals. Defendant was aware of this risk and failed to disclose it to Plaintiff and the Class.
`
`52.
`
`Defendant knew that Heavy Metals and Perchlorate are potentially dangerous
`
`contaminants that poses health risks to humans.
`
`53.
`
`A sampling of raw material sampling shows Defendant utilizes ingredients
`
`containing Heavy Metals:
`
`18
`
`

`

`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 19 of 45
`
`
`Defendant knew or should have known that it owed consumers a duty of care to
`
`54.
`
`prevent, or at the very least, minimize the presence of Heavy Metals and Perchlorate in the
`
`Contaminated Baby Foods to the extent reasonably possible.
`
`55.
`
`Defendant knew or should have known it owed consumers a duty of care to
`
`adequately test for Heavy Metals and Perchlorate in the Contaminated Baby Foods.
`
`56.
`
`Defendant knew consumers purchased the Contaminated Baby Foods based on the
`
`reasonable expectation that Defendant manufactured the Contaminated Baby Foods to the highest
`
`standards. Based on this expectation, Defendant knew or should have known consumers
`
`reasonably inferred that Defendant would hold the Contaminated Baby Foods to the highest
`
`standards for preventing the inclusion of Heavy Metals and Perchlorate in the Contaminated Baby
`
`Foods and for the Heavy Metals and Perchlorate testing of the ingredients in the Contaminated
`
`Baby Foods as well as the final product.
`
`57.
`
`Arsenic is an odorless and tasteless element that does not degrade or disappear.
`
`Arsenic occurs in the environment and can be found in rocks, soil, water, air, plants, and animals.
`
`Inorganic arsenic is highly toxic and a known cause of human cancers. Arsenic exposure can also
`
`cause respiratory, gastrointestinal, hematological, hepatic, renal, skin, neurological and
`
`19
`
`

`

`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 20 of 45
`
`immunological effects, and damage children’s central nervous systems and cognitive
`
`development. Ex. 1 at 9-10. Based on the risks associated with exposure to higher levels of arsenic,
`
`both the U.S. Environmental Protection Agency (“EPA”) and U.S. Food and Drug Administration
`
`(“FDA”) have set limits concerning the allowable limit of arsenic at 10 parts per billion (“ppb”)
`
`for human consumption in apple juice (regulated by the FDA) and drinking water (regulating by
`
`the EPA).
`
`58.
`
`Defendant tests for arsenic contents only in its ingredients, not its final product. Ex.
`
`1 at 17. The Subcommittee’s investigation determined that Defendant “used ingredients containing
`
`as much as 913.4 ppb arsenic. Test results show that Beech-Nut used at least fourteen other
`
`ingredients containing over 300 ppb arsenic. And it used at least 45 ingredients containing over
`
`100 ppb arsenic.” Id.
`
`59.
`
`The “six ingredients with the highest arsenic levels—Amylase, Amylase, BAN
`
`800, Alpha Amylase, and Sebamyl 100—are all enzymes that Beech-Nut adds to its products.
`
`BAN 800 is an enzyme that reportedly “increases crumb softness” in baked goods. Amylase is an
`
`enzyme that is used in bread-making as an additive to improve the conversion of complex sugars
`
`into simple sugars.” Id. (internal quotations omitted).
`
`60.
`
`The Subcommittee’s investigation determined that Defendant’s use of “high-
`
`arsenic additives to address issues like crumb softness” are unnecessary. Id.
`
`61.
`
`The Subcommittee’s investigation also determined that Defendant had the highest
`
`internal standard for arsenic levels of any of the responding manufacturers. In fact, Defendant “set
`
`an internal specification limit [] of 3,000 ppb inorganic arsenic for certain ingredients, including
`
`vitamin mix.” Id. at 37. “As a result of adopting this high internal standard, Beech-Nut has used
`
`ingredients containing 710.9, 465.2, and 401.4 ppb arsenic.” Id. at 37-38.
`
`20
`
`

`

`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 21 of 45
`
`62.
`
`Lead is a carcinogen and developmental toxin known to cause health problems in
`
`children such as behavioral problems, decreased cognitive performance, delayed puberty, and
`
`reduced postnatal growth. Because lead can build up in the body over time as one is exposed to
`
`and/or ingests it, even a low level of chronic exposure can become toxic and seriously injurious to
`
`one’s health. The FDA has set standards that regulate the maximum parts per billion of lead
`
`permissible in water: bottled water cannot contain more than 5 ppb of total lead or 10 ppb of total
`
`arsenic. See 21 C.F.R. § 165.110(b)(4)(iii)(A).
`
`63.
`
`The Subcommittee’s investigation found that baby food manufacturers, like
`
`Defendant, “are selling baby food with higher levels of lead than what is allowed by existing
`
`standards for water, juice, and candy. Internal testing data from [] Beech-Nut [] [it]sold products
`
`or used ingredients with significant amounts of lead.” Ex. 1 at 22. Further, the Subcommittee’s
`
`investigation determined that Defendant did not even test its finished product for lead, and “sold
`
`baby foods even when they or their ingredients contained unsafe levels of lead.” Id.
`
`64.
`
`Defendant uses ingredients, like cinnamon, that contained as much as 886.9 ppb
`
`lead. Id. at 23. It also “routinely used ingredients with high lead content,” including (a) “57
`
`ingredients that contained over 20 ppb lead,” which is the European Union’s “lax standard for lead
`
`in infant formula,” (b) “89 ingredients that contained over 15 ppb lead, [the] EPA’s action level of
`
`drinking water, and (c) 483 ingredients that contained over 5 ppb lead, the FDA’s standard for lead
`
`in bottled water.” Id.
`
`65.
`
`The Subcommittee’s investigation also determined that Defendant had the highest
`
`internal standard for lead levels of any of the responding manufacturers. In fact, Defendant “set
`
`internal guidelines of 5,000 ppb for lead for certain ingredients,” which “far surpass[es] any
`
`21
`
`

`

`Case 1:21-cv-00167-TJM-ML Document 1 Filed 02/11/21 Page 22 of 45
`
`existing regulatory standard in existence and toxic heavy metal levels for any other baby food
`
`manufacturer that responded to the Subcommittee’s inquiry.” Id. at 37-38.
`
`66.
`
`Cadmium is associated with decreases in IQ and the development of ADHD. The
`
`U.S. Department of Health and Human Services has determined that cadmium and cadmium
`
`compounds are known human carcinogens and the EPA has likewise determined that cadmium is
`
`a probable human carcinogen. It has been specifically noted that “Kidney and bone effects have
`
`… been observed in labo