Case 1:21-cv-00269-MSN-JFA Document 210 Filed 10/17/22 Page 1 of 28 PageID# 3661
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`IN RE: GERBER PRODUCTS COMPANY
`HEAVY METALS BABY
`FOOD LITIGATION
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`Master File No. 1:21-cv-269 (MSN/JFA)
`Class Action
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`This Document Relates to ALL Cases
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`MEMORANDUM OPINION AND ORDER
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`This matter comes before the Court on Defendant Gerber Products Company’s Motion to
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`Dismiss Plaintiffs’ Representative Class Action Complaint (Dkt. No. 132).1 Upon consideration
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`of the Motion, the memoranda in support thereof and in opposition thereto, the arguments of
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`counsel at the hearing held on September 23, 2022, and for the reasons set forth below, the Motion
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`is GRANTED.
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`I.
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`CLAIMS AND PROCEDURAL HISTORY
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`On February 4, 2021, the U.S. House of Representatives Subcommittee on Economic and
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`Consumer Policy, Committee on Oversight and Reform, released a report titled “Baby Foods Are
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`Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury,” finding measurable
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`levels of these heavy metals (hereinafter “Heavy Metals”) in baby food products sold by Defendant
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`Gerber Products Company (“Gerber”). RC ¶ 5. According to Plaintiffs, the report “criticized
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`1 These Plaintiffs were selected by Plaintiffs’ lead counsel to be Representative Plaintiffs in the Representative Class
`Action Complaint (Dkt. No. 112) (hereinafter “Representative Complaint” or “RC”). See (Dkt. No. 106). The RC does
`not displace any of the underlying complaints that have been consolidated before this Court. However, the rulings
`with respect to the RC will apply to all claims asserted in each Plaintiff’s complaint unless a Plaintiff shows that a
`claim is materially different, legally or factually, from those considered in the RC. See (Dkt. No. 181), Tr. 18:07–25
`(May 18, 2022).
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`1
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`Gerber for . . . not testing all ingredients and finished products for Heavy Metals, and for rarely
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`testing for mercury in its baby foods.” Id.
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`The Subcommittee released a supplemental report on September 29, 2021, largely based
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`on testing done by the State of Alaska’s Department of Environmental Health Laboratory. Id.
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`¶¶ 117–18. Relying on the Subcommittee’s February 2021 and September 2021 Reports (together
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`the “Congressional Reports”), Plaintiffs filed the Representative Complaint on June 3, 2022 (Dkt.
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`No. 112), alleging that the following products sold by Defendant Gerber (referred to herein as
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`“Baby Food Product(s)”) contained harmful Heavy Metals at levels above what is considered safe
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`for babies: Gerber Puffs (all flavors); Gerber Lil’ Crunchies (all flavors); Gerber Yogurt Melts (all
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`flavors); Gerber 1st Foods (all flavors); Gerber 2nd Foods (all flavors); Gerber Cereals (all types);
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`Gerber Juices (all flavors); Gerber Arrowroot Biscuits; Gerber Teether Wheels (all flavors);
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`Gerber Yogurt Blends (all flavors); Gerber Fruit & Veggie Melts (all types and flavors); Gerber
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`Graduates Mealtime for Toddler (all flavors); and Gerber Diced Carrots Veggie Pick-Ups. See RC
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`¶ 1.
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`Plaintiffs allege the amount of Heavy Metals in the Baby Food Products was harmful to
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`their children. See id. ¶ 8. In support, Plaintiffs rely on standards set by the Food and Drug
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`Administration (“FDA”), World Health Organization, Environmental Protection Agency (“EPA”),
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`the Congressional Reports, and on reports authored by industry groups. See, e.g., id. ¶¶ 52–53.
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`With respect to lead, the RC explains that the EPA, the Centers for Disease Control and Prevention,
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`and others agree there is no established “safe level of lead . . . in a child’s blood.” Id. ¶ 54. The RC
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`points to FDA limits for maximum daily intake of lead from food of 3 micrograms (“μg”) for
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`children and 12.5 μg for women of childbearing age, and a maximum limit of 5 parts per billion
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`(“ppb”) for lead in bottled water. Id. ¶¶ 55–56. As to arsenic, the RC states the FDA has set a
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`2
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`maximum level of 10 ppb for arsenic in drinking water and a limit of 100 ppb for inorganic arsenic
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`in infant rice cereal. Id. ¶ 52. The Supplemental Report found, among other things, that Gerber’s
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`rice cereals “tested up to 116 ppb inorganic arsenic,” which is above the FDA’s 100 ppb standard.
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`Id. ¶¶ 118–19. With respect to cadmium, the RC explains the FDA and EPA have set a maximum
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`allowable limit of 5 ppb for cadmium in bottled water and drinking water. Id. ¶ 63. Lastly, as to
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`mercury, the RC states the FDA has set a limit of 2 ppb for mercury in bottled water, while the
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`EPA has set a limit of 2 ppb for drinking water. Id. ¶ 71.
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`Plaintiffs allege the Baby Food Products contain materially misleading statements or
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`omissions because
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`Gerber failed to disclose on its packaging that (1) the Gerber Baby
`Food Products contain or were at material risk of containing harmful
`Heavy Metals; (2) Gerber inadequately tested, or never tested, for
`all Heavy Metals in all the ingredients it uses and/or its finished
`products; and that (3) when Gerber does set internal standards, they
`allow for the sale of Baby Food Products with Heavy Metals in
`amounts that could cause harm to babies and children and at times,
`the Baby Food Products have failed to meet even those internal
`standards.
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`Id. ¶ 11. Had Gerber disclosed the foregoing material facts, Plaintiffs claim they “would have
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`sought alternative options and would not have purchased the Gerber Baby Food Products.” Id.
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`Further, Plaintiffs allege they were injured because they “did not receive the benefit of their bargain
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`and thus overpaid for” the Baby Food Products. Id. Accordingly, Plaintiffs seek injunctive relief
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`and monetary damages for Defendant’s alleged material omissions. Id. at p. 96.2
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`2 Specifically, Plaintiffs request various forms of injunctive relief including an order (1) enjoining Defendant from
`“selling the Baby Food Products until the harmful Heavy Metals are removed or reduced to nondetectable levels and/or
`full disclosure of the presence of such prominently appears on all packaging”; (2) “requiring Defendant to establish
`sourcing and control protocols, consult with an independent auditor, and conduct compliance testing”; (3) “enjoining
`Defendant from selling its Baby Food Products in any manner suggesting or implying that they are healthy, nutritious,
`and safe for consumption unless Defendant adequately tests for Heavy Metals and ensures that the Heavy Metals are
`no longer present or reduced to nondetectable levels”; and (4) “requiring Defendant to engage in a corrective
`advertising campaign and to engage in any further necessary affirmative injunctive relief, such as recalling existing
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`3
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`Plaintiffs collectively assert the following thirteen causes of action in their Representative
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`Complaint:
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`Count I: breach of implied warranty (on behalf of Plaintiffs and the class or, in the
`alternative, the State classes) (RC ¶¶ 170–87);3
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`Count II: fraudulent concealment – fraud by omission (on behalf of Plaintiffs and the class
`or, in the alternative, the State classes) (id. ¶¶ 188–200);
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`Count III: quasi contract/unjust enrichment (on behalf of Plaintiffs and the class or, in the
`alternative, the State classes) (id. ¶¶ 201–09);
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`Count IV: violation of California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1750,
`et seq. (on behalf of Plaintiffs Christopher Craig, Deandra Bryant, Mayra Verduzco, and
`the California class) (id. ¶¶ 210–26);
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`Count V: violations of California’s False Advertising Law, Cal. Bus. & Prof. Code
`§ 17500, et seq. (on behalf of the California Plaintiffs and the California class) (id. ¶¶ 227–
`39);
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`Count VI: violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code
`§ 17200, et seq. (on behalf of the California Plaintiffs and the California class) (id. ¶¶ 240–
`56);
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`Count VII: violation of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790,
`et seq. (on behalf of the California Plaintiffs and the California class) (id. ¶¶ 257–76);4
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`Count VIII: violation of Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat.
`§ 501.201, et seq. (on behalf of Plaintiffs Renee Bryan, Jennifer Gaetan, Vanessa Inoa, and
`the Florida class) (id. ¶¶ 277–89);
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`Count IX: violation of Illinois’ Consumer Fraud and Deceptive Business Practices Act,
`815 Ill. Comp. Stat. 505/1, et seq. (on behalf of Plaintiff Charlotte Willoughby and the
`Illinois class) (id. ¶¶ 290–306);
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`Count X: violation of New York’s Deceptive Acts and Practices Act, N.Y. Gen. Bus. Law
`§ 349 (on behalf of Plaintiffs Angelique Velez, Danielle Visconti, and the New York class)
`(id. ¶¶ 307–24);
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`products.” RC at pp. 96–97. Plaintiffs have abandoned their request for “an order recalling the [Baby Food] Products
`or a declaration that the Products are adulterated or unsafe.” Pl. Opp. (Dkt. No. 145) at 6. Further, it appears that
`Plaintiffs have abandoned their request for disgorgement of revenues and profit. See RC at p. 97.
`3 In Plaintiffs’ Opposition to Defendant’s Motion to Dismiss, Plaintiffs agreed to dismiss their breach of implied
`warranty claim. Pl. Opp. at 6 n.4.
`4 In Plaintiffs’ Opposition to Defendant’s Motion to Dismiss, Plaintiffs agreed to dismiss their Song-Beverly
`Consumer Warranty Act claim. Pl. Opp. at 6 n.4.
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`4
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`Count XI: violation of New York’s False Advertising Act, N.Y. Gen. Bus. Law § 350 (on
`behalf of Plaintiffs Angelique Velez, Danielle Visconti, and the New York class) (id. ¶¶
`325–40);
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`Count XII: violation of Texas’ Deceptive Trade Practices and Consumer Protection Act,
`Tex. Bus. & Com. Code § 17.41, et seq. (on behalf of Plaintiffs Jessica Moore, Janice
`Wilson, and the Texas class) (id. ¶¶ 341–58); and
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`Count XIII: violations of Virginia’s Consumer Protection Act, Va. Code Ann.
`§ 59.1-196, et seq. (on behalf of Plaintiffs and the class) (id. ¶¶ 359–77).
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`On July 8, 2022, Defendant filed a motion to dismiss Plaintiffs’ claims on several grounds,
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`two of which are the focus of the Court’s analysis: (1) Plaintiffs fail to state a plausible claim that
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`they suffered an economic injury and that they are entitled to injunctive relief, and (2) the FDA
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`should determine what foods are unsafe under the primary jurisdiction doctrine. As explained more
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`fully below, Defendant’s Motion to Dismiss will be granted.5
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`II.
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`LEGAL STANDARD
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`A.
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`RULE 12(b)(6)
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`The Federal Rules of Civil Procedure require a complaint to set forth “a short and plain
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`statement of the claim showing that the pleader is entitled to relief, in order to give the defendant
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`fair notice of what the . . . claim is and grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 555 (2007) (cleaned up). “To survive a motion to dismiss, a complaint must contain
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`sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). Importantly, in making this
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`determination, a district court must “accept as true all well-pled facts in the complaint and construe
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`them in the light most favorable to [the plaintiff].” United States v. Triple Canopy, Inc., 775 F.3d
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`628, 632 n.1 (4th Cir. 2015).
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`5 Because the Court dismisses the Representative Complaint on the threshold issue of standing, and in the alternative,
`primary jurisdiction, it need not address Defendant’s other proposed grounds for dismissal here.
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`5
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`However, to survive a motion to dismiss, the complaint must “state[] a plausible claim for
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`relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based upon
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`“its judicial experience and common sense.” Ashcroft, 556 U.S. at 679. In this regard, while a
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`plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion
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`to dismiss, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–15 (2002), “[f]actual allegations
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`must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp., 550 U.S. at
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`555. Further, for a plaintiff to prevail, the complaint must do more than allege the plaintiff’s
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`entitlement to relief; it must “show such an entitlement with its facts.” Fowler v. UPMC Shadyside,
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`578 F.3d 203, 211 (3d Cir. 2009) (cleaned up).
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`B.
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`STANDING
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`While Defendant focuses on Plaintiffs’ failure to plead injury as an element of their claims,
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`injury is also a requirement for standing—an issue the Court may raise sua sponte “as a matter of
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`the case-or-controversy requirement associated with Art. III.” Juidice v. Vail, 430 U.S. 327, 331
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`(1977); see Buscemi v. Bell, 964 F.3d 252, 258 (4th Cir. 2020) (a court must ensure it has subject
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`matter jurisdiction, and as such, may address standing sua sponte). Because Plaintiffs must
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`establish standing to maintain an action in federal court, the Court first considers whether Plaintiffs
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`have alleged an injury for purposes of Article III standing, taking care to “separate [its] standing
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`inquiry from any assessment of the merits of [Plaintiffs’] claim.” See Cottrell v. Alcon Labs., 874
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`F.3d 154, 162 (3d Cir. 2017).6
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`As the party seeking to invoke federal jurisdiction, Plaintiffs bear the burden of establishing
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`standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Similar to a review of
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`6 Defendant asserts it raised injury under Rule 12(b)(6) rather than as a challenge to standing under Rule 12(b)(1)
`because this would “allow the Court to rule on all of [Plaintiffs’ claims].” Hr. Tr. (Dkt. No. 198) 57:25–58:09. The
`Court disagrees and concludes, as discussed below, that it can rule on all claims based on Article III standing.
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`a complaint for failure to state a claim, courts “must accept as true all material allegations of the
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`complaint and must construe the complaint in favor” of plaintiffs when determining whether
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`plaintiffs have standing. Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006). The
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`threshold, however, to demonstrate standing is lower than that required to state a claim. Ross v.
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`Bank of Am., N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008); cf. Buscemi, 964 F.3d at 266 (finding
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`injury in fact for Article III standing, but dismissing for failure to state a claim). “Moreover, the
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`fact that an injury may be outweighed by other benefits, while often sufficient to defeat a claim for
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`damages, does not negate standing.” Ross, 524 F.3d at 222.
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`To establish standing, Plaintiffs must adequately plead three elements: (1) an injury in fact,
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`(2) a “causal connection between the injury and the conduct complained of,” and (3) that it is
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`“likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
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`Lujan, 504 U.S. at 560–61 (cleaned up). In the class action context, at least one named plaintiff
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`must satisfy all three requirements. O’Shea v. Littleton, 414 U.S. 488, 494 (1974). The Court’s
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`analysis focuses on the first and most important of these three elements: the injury in fact. See In re
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`Johnson & Johnson Talcum Powder Prods. Mktg., Sales Pracs. & Liab. Litig. (“In re J&J”), 903
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`F.3d 278, 284 (3d Cir. 2018).
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`Demonstrating an injury in fact requires plaintiffs to allege three sub-elements:
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`(a) plaintiffs must show they suffered “an invasion of a legally protected interest,” (b) the alleged
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`injury must be “concrete and particularized,” and (c) the alleged injury must be “actual or
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`imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). “[T]he injury in
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`fact test requires more than injury to a cognizable interest. It requires that the party seeking review
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`be himself among the injured.” Id. at 563.
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`III. ANALYSIS
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`Plaintiffs seek relief in the form of monetary damages and injunctive action. Because
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`Plaintiffs must demonstrate they have “standing for each type of relief sought,” see In re J&J,
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`903 F.3d at 284 (cleaned up), the Court will assess whether Plaintiffs have alleged an injury in fact
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`sufficient to seek these two categories of relief.
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`A. MONETARY DAMAGES
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`In their opposition to Defendant’s motion to dismiss, Plaintiffs make clear they do not seek
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`to establish standing on the basis of personal injury, i.e., an increased risk of adverse health effects
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`as a result of consuming the Baby Food Products. See Pl. Opp. (Dkt. No. 145) at 19 n.14 (“Plaintiffs
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`do not allege personal injuries and none of their claims or damage theories require them to do so.
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`Nor are they required to allege that the specific products they bought were unfit for human
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`consumption.”); id. at 2 (“Plaintiffs are not required to allege a personal injury”); id. at 6 (“Plaintiff
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`[sic] do not seek an order recalling the Products or a declaration that the Products are adulterated
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`or unsafe.”); id. at 7 n.5 (“Plaintiffs’ claims do not turn on proving whether Gerber’s products were
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`safe”). Rightfully so, as Plaintiffs must plead a credible or substantial threat to their health or that
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`of their children and such threat “must be certainly impending to constitute injury in fact.” Clapper
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`v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013) (cleaned up); see Kimca v. Sprout Foods, Inc.
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`(“Kimca I”), No. 2:21-cv-12977-SRC-JSA, 2022 WL 1213488, at *5 (D.N.J. Apr. 25, 2022)
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`(finding FDA benchmarks and other data cited by plaintiffs were too speculative and arbitrary to
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`conclude that plaintiffs plausibly alleged the baby food products were unsafe); Herrington v.
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`Johnson & Johnson Consumer Cos., Inc., No. C 09–1597 CW, 2010 WL 3448531, at *5 (N.D.
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`Cal. Sept. 1, 2010). As Plaintiffs well know, “fear and apprehension about a possible future
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`physical or medical consequence . . . is not enough to establish an injury in fact.” Georgine v.
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`Amchem Prods., Inc., 83 F.3d 610, 636 (3d Cir. 1996) (Wellford, J., concurring) (cleaned up).
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`Plaintiffs’ sole theory of injury in fact, then, is economic harm resulting from their purchase
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`of a product that was “worthless or worth less” than the purchase price due to Defendant’s material
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`omissions. RC ¶ 339. Courts have recognized various and sometimes overlapping theories for
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`pleading economic injury—including a benefit of the bargain theory,7 a price premium theory,8
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`and an alternative product theory9—but underlying each approach is the basic principle that
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`economic harm results when the purchase price of a product exceeds the actual value of the product
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`after taking into account a defendant’s improper actions.
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`This is where Plaintiffs’ argument runs afoul of logic: to establish the diminished value of
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`the Baby Food Products—a necessary predicate to show economic harm—Plaintiffs allege the
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`Baby Food Products were worth less than the purchase price, not because they failed to perform
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`as intended or were otherwise defective, but because they contained or were at risk of containing
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`Heavy Metals. Those Heavy Metals, Plaintiffs assert, “are indisputably harmful to children and
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`can result in serious developmental and other health problems,” and Plaintiffs would not have
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`purchased the Baby Food Products had they known the risks. Pl. Opp. at 21 (citing RC ¶¶ 45, 73);
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`id. at 22 (Heavy Metals “can lead to harm including IQ loss, attention deficits, and other learning
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`and behavioral impacts among children”) (citing RC ¶¶ 45–72). In other words, Plaintiffs’ only
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`purported basis for economic injury stems from their allegation that the Baby Food Products posed
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`a threat of future harm—an allegation that Plaintiffs explicitly disavow in the context of personal
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`injury. As discussed below, Plaintiffs fail to allege sufficient facts to support a finding of economic
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`7 See, e.g., Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019).
`8 See, e.g., Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 350 (S.D.N.Y. 2020).
`9 See, e.g., In re J&J, 903 F.3d 278, 282–83 (3d Cir. 2018).
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`injury for the same reasons they cannot support a personal injury claim: there is no “actual or
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`imminent” injury alleged. Lujan, 504 U.S. at 560.
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`Plaintiffs claim that, due to Defendant’s material omissions, they did not “receive the
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`benefit of their bargain and thus overpaid for the Gerber Baby Food Products.” RC ¶ 11. Plaintiffs
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`also assert the inverse: that “Gerber’s omissions created a ‘price premium’ for the Products and
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`thus Plaintiffs did not receive the ‘benefit of their bargain.’” Pl. Opp. at 16. The Court will address
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`each potential theory of economic injury—benefit of the bargain and price premium—in turn.
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`1.
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`Benefit of the Bargain
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`A person is deprived of the benefit of her bargain when, due to a seller’s deceptive act,
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`unfair practice, or misrepresentation, she purchases a product that is in fact worth less than the
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`represented value. See In re Devotion Assocs., Ltd., 86 F.3d 1149, 1996 WL 265990, at *2 (4th
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`Cir. 1996) (unpublished table decision); Debernardis v. IQ Formulations, LLC, 942 F.3d 1076,
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`1084 (11th Cir. 2019). Typically, when the defective or misrepresented product is a durable good
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`still in plaintiff’s possession, it retains some value and plaintiff’s “benefit-of-the-bargain damages
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`are less than the entire purchase price of the product.” Debernardis, 942 F.3d at 1084; In re Lumber
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`Liquidators Chinese-Manufactured Flooring Prods. Mkt., Sales Pracs., & Prods. Liab. Litig. (“In
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`re Lumber Liquidators”), No. 1:15-md-2627, 2017 WL 2646286, at *5 (E.D. Va. June 20, 2017);
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`In re Fruit Juice Prods. Mktg. & Sales Pracs. Litig., 831 F. Supp. 2d 507, 513 (D. Mass. 2011).
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`But, when a plaintiff purchases a consumable good and uses it to her benefit, there is no economic
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`injury unless plaintiff alleges the product “failed to work for its intended purpose or was worth
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`objectively less than what one could reasonably expect.”10 Koronthaly v. L’Oreal USA, Inc., 374
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`10 The Court notes that a benefit of the bargain measure of damages arises out of contract law, whereas a mislabeling
`claim arises out of tort law. See Debernardis, 942 F.3d at 1085; Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 320 (5th
`Cir. 2002); Koronthaly v. L’Oreal USA, Inc., 374 F. App’x 257, 259 (3d Cir. 2010) (finding lipstick purchases were
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`10
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`F. App’x 257, 259 (3d Cir. 2010); Herrington, 2010 WL 3448531, at *4; see Estrada v. Johnson
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`& Johnson Consumer Cos., Inc., Civ. Action No. 16-7492 (FLW), 2017 WL 2999026, at *9
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`(D.N.J. July 14, 2017) aff’d sub nom. In re J&J, 903 F.3d 278, 284 (3d Cir. 2018); James v.
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`Johnson & Johnson Consumer Cos., No. 10-cv-03049 (DMC)(JAD), 2011 WL 198026, at *2
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`(D.N.J. Jan. 18, 2011).
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`Plaintiffs claim Defendant deceptively led them to believe the Baby Food Products were
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`safe11 and, had they known the Baby Food Products contained or were at a material risk of
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`containing harmful Heavy Metals, they would not have purchased them. See, e.g., RC ¶ 339.
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`Plaintiffs contend that Defendant’s failure to disclose the presence of Heavy Metals, or risk
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`thereof, rendered the Baby Food Products “worthless or worth less than the price they paid” and
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`thereby deprived Plaintiffs of the benefit of their bargain. Id. Defendant counters that Plaintiffs
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`were able to use the Baby Food Products as intended and without suffering any adverse
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`consequences—essentially arguing that, in so doing, Plaintiffs received the full benefit of their
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`bargain—and that unspecified, vague assertions of the Baby Food Products’ diminished value are
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`insufficient to demonstrate economic harm. See Def. Mem. (Dkt. No. 133) at 24.
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`The Third Circuit considered a similar argument in In re J&J. There, plaintiff Estrada
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`claimed a benefit of the bargain theory of economic injury by alleging that Johnson & Johnson
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`engaged in deceptive advertising when it failed to disclose that a woman’s perineal use of its baby
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`not made pursuant to a contract, and therefore plaintiff could not have been denied the benefit of any bargain).
`Although no such contract between Plaintiffs and Defendant exists here, the Court nevertheless considers whether
`Plaintiffs plausibly allege an economic injury in fact based on the Baby Food Products’ failure to perform as intended.
`11 This belief is based on “the famous ‘Gerber Baby’ logo” and other “indications” (such as Gerber’s packaging claims
`that certain products support “brain development and learning ability” or are “made with real fruit” or “whole grains”),
`which “conveyed to parents . . . that the Gerber Baby Food Products are safe and suitable for consumption by babies
`and young children.” RC ¶ 4.
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`11
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`Case 1:21-cv-00269-MSN-JFA Document 210 Filed 10/17/22 Page 12 of 28 PageID# 3672
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`powder “can lead to an increased risk of developing ovarian cancer.” In re J&J, 903 F.3d at 281.12
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`Estrada argued she did not receive the benefit of her bargain because she was promised a baby
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`powder that was “safe” to use, and she would not have bought the product had she known of the
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`health risks. Id. at 281–83. Estrada did not allege she was at an increased risk of adverse health
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`effects under a personal injury claim; rather, she argued her purchase—based on J&J’s deceptive
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`and unfair business practices—alone constituted an injury in fact. Id. at 287.
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`The Third Circuit rejected this argument. To allege an economic injury merely from
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`purchasing a product, Estrada was required to plead with specific facts that the baby powder she
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`purchased was worth less than what she paid. Id. at 287–88. Despite Estrada’s allegations that the
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`baby powder was unsafe, she omitted any allegation that she developed ovarian cancer or that she
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`was at risk of developing ovarian cancer in the future. Id at 289. “Estrada’s references to Baby
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`Powder being unsafe as to others are not relevant to determining whether Estrada has standing
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`herself.” Id. Because Estrada did not allege a risk of physical harm or seek recovery of personal
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`injury damages, the court concluded the baby powder must have been “safe as to her.” Id. In other
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`words, Estrada received exactly that for which she bargained: she purchased baby powder that was
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`not “unsafe,” id. at 291, she consumed the product in its entirety, and there were no allegations the
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`baby powder failed to perform as marketed (i.e., “designed to gently absorb excess moisture” and
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`keep “skin feeling soft, fresh and comfortable”). Id. at 281. Thus, Estrada could not establish injury
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`under a benefit of the bargain theory of economic harm.
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`Like plaintiffs in In re J&J and as noted above, see supra p. 8, Plaintiffs do not allege the
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`Baby Food Products were unsafe as to them. The Representative Complaint certainly discusses the
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`12 “In support of her allegations regarding the increased cancer risk associated with Baby Powder, Plaintiff cites
`numerous clinical studies that have been conducted since 1961. Plaintiff alleges that since at least 1982, Defendants
`have been aware of the studies associating talcum powder with an elevated risk of ovarian cancer.” Estrada, 2017 WL
`2999026, at *1 (cleaned up).
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`12
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`dangers to human health from exposure to Heavy Metals, especially to children and infants, see
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`generally RC ¶¶ 42–75; however, it contains no allegations the Baby Food Products were
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`adulterated, recalled, or the cause of any reported injuries.13 See In re Fruit Juice Prods. Mktg. &
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`Sales Pracs. Litig., 831 F. Supp. 2d at 512; Herrington, 2010 WL 3448531, at *20 (defendant’s
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`alleged failure to disclose the presence of possible carcinogens and unsafe contaminants in
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`children’s bath products did not create an economic injury because plaintiffs did not allege the
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`levels of contaminants were unsafe). Nor does the Representative Complaint allege Plaintiffs’
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`children are at imminent risk of developing any specific ailment in the future because they
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`consumed the Baby Food Products. Indeed, Plaintiffs concede “[their] claims do not turn on
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`proving whether Gerber’s products were safe.” Pl. Opp. at 7 n.5. Accordingly, this Court must
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`conclude the Baby Food Products were “safe as to them.”
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`Further, Plaintiffs have not alleged the Baby Food Products failed to provide Plaintiffs’
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`children with nourishment or to otherwise perform as intended. To state a concrete and
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`particularized injury, a plaintiff must do more than allege she did not receive the benefit she
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`thought she was obtaining. “The plaintiff must show that she did not receive a benefit for which
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`she actually bargained.” McGee v. S-L Snacks Nat’l, 982 F.3d 700, 706 (9th Cir. 2020); see also
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`Herrington, 2010 WL 3448531, at *5 (N.D. Cal. Sept. 1, 2010) (“[p]laintiffs complain about a
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`consumable good that they used to their benefit”). “Without alleging that a product failed to
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`perform as advertised, a plaintiff has received the benefit of [her] bargain and has no basis to
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`13 The closest Plaintiffs come to making such an allegation is with respect to Defendant’s rice cereals, which “tested
`[at levels] up to 116 ppb inorganic arsenic,” and which Defendant did not recall despite having “nearly identical”
`levels to Beech-Nut’s recalled rice cereals. RC ¶ 119. Yet, in their opposition to Defendant’s motion to dismiss,
`Plaintiffs clarified that they “do not allege that Gerber’s Products are adulterated, and their claims do not depend on
`such a showing.” See Pl. Opp. at 14; id. at 7. Thus, Plaintiffs specifically disavow any allegation that the Baby Food
`Products are unsafe or otherwise unfit for sale and consumption, instead basing their claims only “on Gerber’s failure
`to disclose material facts that consumers, including parents, would want to know when deciding what foods to buy and
`feed to their kids.” Id. at 7 (emphasis added).
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`13
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`recover purchase costs.” See Williams v. Purdue Pharma Co., 297 F. Supp. 2d 171, 176 (D.D.C.
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`2003). Although Plaintiffs never explicitly address whether they or their children consumed the
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`Baby Food Products,14 the Court can infer the Baby Food Products performed as intended based
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`on Plaintiffs’ acknowledgment that they purchased said Products repeatedly and “frequently.” See,
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`e.g., RC ¶ 16 (“Plaintiff Bryant purchased these products frequently from approximately December
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`2020 through February 2021.”).
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`Here, Plaintiffs paid for safe and healthy food for their children and apparently received
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`just that—the benefit of their bargain. Accepting the pleadings as alleged, Plaintiffs’ only
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`complaint is that the Baby Food Products’ levels of Heavy Metals are “unsatisfactory to [them].”
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`Koronthaly v. L’Oreal USA, Inc., No. 07-cv-5588, 2008 WL 2938045, at *5 (D.N.J. July 2, 2008),
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`aff’d, 374 F. App’x 257 (3d Cir. 2010). Without more, such an assertion does not amount to a
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`concrete and particularized injury.15 As such, this Court finds that Plaintiffs’ benefit of the bargain
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`theory of economic harm is insufficient to establish an injury in fact for the purposes of Article III
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`standing.
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`2.
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`Price Premium
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`“One method of demonstrating actual injury in the consumable goods context is by
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`showing that the plaintiff paid a ‘price premium’—that is, as a result of the defendant’s deception,
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`14 This is likely because an admission would negate one or the other of Plaintiffs’ conflicting economic injury claims:
`if the Product was not consumed, there would be no risk of an adverse health conse