A consumer purchases a product and later finds out that the product was contaminated with a toxic substance.  Was the consumer injured?  Without knowing more, the answer is “no”—at least for the purposes of establishing standing in the Third Circuit.  In Koronthaly v. L’Oreal USA, Inc., 374 F. App’x 257, 259 (3d Cir. 2010), the court held that mere exposure to lead in lipstick was not sufficient to support standing.  Years later, in In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practice & Liability Litigation, 903 F.3d 278, 289, 290 n. 15 (3d Cir. 2018), the court held that mere exposure to a carcinogen in talcum powder is likewise not enough to establish standing.

Following this trend, District Judge Chesler in the District of New Jersey recently dismissed a case where plaintiffs alleged they purchased baby food contaminated with heavy metals.  See Kimca v. Sprout Foods, Inc. d/b/a Sprout Organic Foods, 2022 WL 1213488 (D.N.J. Apr. 25, 2022). 

In Kimca, plaintiffs alleged that a manufacturer of baby foods failed to disclose that its products were contaminated with “unsafe levels of heavy metals.”  Id. at *1. Although Judge Chesler agreed that plaintiffs had sufficiently alleged the products contained heavy metals, this fact was not sufficient to support Article III standing to sue for economic damages.  Id. at *4-9. The plaintiffs argued (among other things) that they had been denied the “benefit of the bargain” because they unexpectedly received an uncontaminated product. Id. at *9. The court rejected that theory because plaintiffs did not allege that the contamination resulted in any adverse physical consequences.  Id. Significant to the court’s decision was the fact that the level of heavy metals in defendant’s baby food did not violate any “accepted standard.”  Id. at *6. 

Kimca may present a significant hurdle to plaintiffs asserting class action claims against manufacturers where there are alleged contaminants in a product.  In many of those cases, plaintiffs attempt to assert economic damages based on the theory that consumers received a less valuable product due to unexpected contamination.  In Kimca, however, the court held that the mere presence of a contaminant does not mean that a consumer suffered an injury sufficient to confer Article III standing.  Instead, a consumer must allege a risk of physical harm—by, for example, alleging that the level of contamination exceeded some federal health standard—before bringing class action claims for economic damages.