Texas Attorney General Ken Paxton has filed a lawsuit against Nestlé and its US subsidiary Gerber Products. He accuses them of misleading parents about the presence of toxic heavy metals in Gerber-brand baby food. The complaint is based on the Texas law against unfair business practices, the Texas Unfair Trade Practices Act (DTPA). At this stage, these are allegations: no court has ruled.

What the lawsuit alleges

According to the statement released on Wednesday by the Attorney General, Gerber marketed its products as safe, rigorously tested and recommended by pediatricians, even though its own testing revealed dangerous levels of arsenic and lead. The figures cited are all measured against the federal limits set for bottled water.

Between 2017 and 2019, Gerber allegedly used 67 batches of rice flour with arsenic concentrations more than nine times the limit allowed in bottled water. Carrots allegedly contained up to 17 times the permitted limit for cadmium, and sweet potatoes nearly 10 times the limit set for lead. “Gerber rarely tested for mercury. For most of this period, the company tested certain ingredients rather than the finished baby food,” says Ken Paxton.

The Attorney General also cites the Alaska state laboratory, which in 2021 detected two samples of Gerber rice cereal with arsenic levels above the federal limit. “Gerber issued no recall or warning and continued to sell its products,” he notes, pointing out that the brand has previously recalled products over the presence of plastic or a choking hazard, but never because of heavy metals.

What remains to be established

The case rests largely on the Attorney General’s assertions. He points out that federal health agencies rank arsenic, lead and mercury first, second and third respectively among the substances potentially most harmful to human health, and that in medical toxicology no safe threshold has been established for lead or inorganic arsenic in infants. It will be for the courts to decide whether Gerber’s claims amounted to a deceptive trade practice within the meaning of the DTPA.

One element adds nuance to the picture: Gerber now displays its test results via a QR code on its labels. For Ken Paxton, this is not enough, because “the heavy metal content of the food has remained unchanged, as have the safety claims on the front of the packaging.” Contacted by the AWP news agency, Nestlé was not immediately available for comment. The Vevey-based group’s position on the substance of the lawsuit is therefore not yet known.

A risk that adds to others for Nestlé

The news report on the lawsuit does not mention any amount being sought, which makes it impossible at this stage to put a figure on the financial stakes of the proceedings. The risk is measured above all in terms of the reputation of the infant nutrition division, already under pressure this year.

Since the start of the year, Nestlé has indeed carried out a series of recalls of infant formula contaminated with the toxin cereulide. In early January, the recall affected 31 countries and represented less than 0.5% of the group’s sales. Since then, around 60 countries have been affected, reports of sick babies have multiplied, notably in Belgium and the United Kingdom, and three suspected deaths of infants who drank the recalled formula are under investigation in France.

The Texas lawsuit targets other products and other substances, but it touches the same sensitive point: parents’ trust in the safety of the baby food sold by the Vaud-based group. What happens next will depend on the defence that Nestlé and Gerber mount against the allegations.

Sources