In brief: Texas sued Nestlé USA and its Gerber baby food unit, saying Gerber sold its food as rigorously tested while its own ingredient tests found arsenic, lead and cadmium.
Implications:
Testing: Your ingredient tests may not be enough. Four states already require monthly tests of the finished product, and Texas wants a court to tie Gerber’s claims to them.
Limits: The lead limit Texas wants is 5 parts per billion, half of FDA’s level for most baby food.
Labels: Texas is suing over the words on the package, like “safe” and “rigorously tested,” even though Gerber says it meets every FDA limit.
The News
Texas sued Nestlé USA and Gerber in Collin County, asking the court to bar them from calling Gerber baby food safe or tested unless the finished product holds no more than 5 parts per billion of lead and 10 parts per billion of inorganic arsenic. For infant cereal, the state would allow 15 parts per billion of arsenic and 10 of lead.
The lawsuit rests largely on Gerber’s own records, which it produced to a congressional subcommittee in 2021. From 2017 to 2019, Gerber used 67 batches of rice flour with more than 90 parts per billion of inorganic arsenic, nine times the bottled-water limit. Some of its carrots carried up to 87 parts per billion of cadmium, and some sweet potatoes up to 48 of lead.
For most of that period Gerber tested selected ingredients rather than the food a baby eats, and it rarely tested for mercury.
The state is suing under its consumer protection law, which allows penalties of up to $10,000 per violation. It also wants refunds of the premium paid for Gerber’s organic line and notices to Texas buyers.
Nestlé USA is named because Gerber food reaches Texas through Nestlé USA’s distribution network, including a distribution center in Fort Worth, the petition says.
Gerber said its baby food meets FDA limits for heavy metals and that every product is tested for more than 500 toxins and contaminants.
Why It Matters
A maker can meet every federal level and still be sued over what its label says about testing, because FDA has left most of the numbers to states and courts.
Few federal limits: Apart from an arsenic level for infant rice cereal, FDA has set limits only for lead in baby food.
Guidance, not rules: Its lead levels of 10 parts per billion for most foods are guidance rather than binding rules.
Zoom In
In one manufacturer’s own comparison, cited in the petition from a 2021 House report, estimates built from ingredient tests understated metal levels in the finished product every time, by 28% to 93%. Gerber’s records to Congress held only ingredient tests.
Gerber now tests finished products monthly and posts the results behind a QR code on its labels, because California’s baby food law requires it. Maryland, Virginia and Illinois passed laws that also require monthly tests of a sample from each production run of the finished food. Three of the four states also bar sales above federal levels. Texas argues the QR code doesn’t fix a safety claim on the front of the package.
Gerber’s rice cereal averaged 87 parts per billion of inorganic arsenic in Alaska’s 2021 shelf tests, higher than the Beech-Nut cereal that was recalled, and nearly six times the 15 Texas now asks for.
Who’s Exposed
Baby and toddler food brands are first in line. Texas sent civil investigative demands across the industry, and any package that promises “tested,” “clean” or “safe” is the kind of claim it sues over. Their ingredient suppliers sit right behind them, because the petition names rice flour, carrots, sweet potatoes and juice concentrates, and Gerber’s tested juice concentrates averaged 11.2 parts per billion of lead. Regulators have held a brand answerable for its whole food chain before, as when China summoned Walmart over Sam’s Club food safety.
Peer Insights
Each of these baby food makers changed what it tests or ships after its metal levels came under scrutiny:
Plum Organics: In its settlement with Texas, Plum agreed not to ship any lot whose tests exceeded FDA’s lead levels or, where FDA had none, the EU’s limits for cadmium and inorganic arsenic. It also capped mercury in its pouches at 10 parts per billion, and its results are searchable by UPC, lot number or best-by date.
Beech-Nut: Fifteen days after Alaska’s last lab report in 2021, Beech-Nut recalled the affected rice cereal and left the infant rice cereal business.
What’s Next
Texas has asked for a temporary injunction hearing at the earliest date the court can give, followed by a jury trial. FDA’s Closer to Zero plan still has no final levels for cadmium in baby food or for arsenic beyond rice cereal, so state laws and settlements like Plum’s set those numbers for now.
