The District Court for the District of New Jersey recently dismissed a putative class action alleging that defendants sold baby foods with high levels of heavy metals, holding that plaintiffs failed to plead an injury sufficient to support standing.  In re Plum Baby Food Litigation, No. 1:21-cv-02417-NLH-SAK, 2022 WL 16552786 (D.N.J. Oct. 31, 2022).  This decision adds to the list of cases in the Third Circuit holding that merely alleging exposure to toxic substances in consumer products, without more, is insufficient to establish Article III standing.  See Covington’s prior blog post on the trend in the Third Circuit here.

In In re Plum Baby Food Litigation, the court first held that the economic injury alleged by the plaintiffs—that they were denied the benefit of the bargain and paid an unfair premium price—was insufficient to establish standing.  The plaintiffs’ attempt to allege injury based on the benefit of the bargain theory failed, because (a) the plaintiffs did not allege any physical harm, and (b) the products fulfilled the intended purpose, i.e., imparting nutrition.  The court noted that FDA’s statement that parents should not throw out packaged baby foods in an attempt to avoid toxic elements suggested that the products at issue worked as intended, substantially weakening the plaintiffs’ claim that they did not receive the benefit of the bargain.  As to plaintiffs’ premium price theory, they alleged only that had they known the products contained heavy metals, they would not have paid as much for the products, which was not enough to demonstrate that a premium was in fact paid.

The court also held that the plaintiffs failed to demonstrate standing to seek injunctive relief.  The court quoted Third Circuit precedent that once a plaintiff knows of the alleged health risks of a product, the “law accords people the dignity of assuming that they act rationally, in light of the information they possess”—meaning they will not purchase the product again in the future.  Even if the plaintiffs might for some reason purchase the products again in the future, the risk of alleged harm here was not sufficiently imminent or substantial to independently support standing.

The court’s decision was in line with and relied upon two recent decisions dismissing claims arising out of alleged exposure to heavy metals in baby foods.  In re Gerber Prods. Co. Heavy Metals Baby Food Litigation, No. 1:21-cv-269-MSN-JFA, 2022 WL 10197651 (E.D. Va. Oct. 17, 2022); Kimca v. Sprout Foods, Inc., No. 1:21-cv-12977-SRC, 2022 WL 1213488 (D.N.J. Apr. 25, 2022).  This line of dismissals presented a contrast to a decision earlier in the year in a similar action in the Northern District of California.  In re Plum Baby Food Litigation, No. 4:21-cv-00913-YGR, 2022 WL 16640802 (N.D. Cal. Jan. 12, 2022).  The court denied defendants’ motion to dismiss there, holding that the plaintiffs adequately alleged an injury in fact by claiming they would not have paid the purchase price had they known the products contained heavy metals.  The court also held that the plaintiffs demonstrated standing to seek injunctive relief, because all of the plaintiffs but one alleged that they would be willing to purchase the products at issue in the future if they could be certain that the products did not contain heavy metals.  Notably, the plaintiffs filed a motion to intervene in the District of New Jersey action, for the limited purpose of seeking a stay under the first-filed rule.  The court denied the motion to intervene as moot, given that the underlying case was being dismissed for lack of standing.