Virginia Lawyers Weekly VA Lawyers Weekly
Where parents alleged that Gerber sold baby food products containing heavy metals at levels the plaintiffs considered unsafe, but their complaint suggested they paid for safe and healthy food for their children and apparently received just that, they failed to plausibly allege an injury and thus lacked standing.
Background
Plaintiffs allege that certain products sold by Gerber Products Company contained harmful heavy metals at levels above what is considered safe for babies. And that, as a result, the baby food products contain materially misleading statements or omissions.
Defendant filed a motion to dismiss plaintiffs’ claims on several grounds including that (1) plaintiffs fail to state a plausible claim that they suffered an economic injury and that they are entitled to injunctive relief and (2) the Food and Drug Administration, or FDA, should determine what foods are unsafe under the primary jurisdiction doctrine.
Standing
Plaintiffs do not seek to establish standing on the basis of personal injury. Plaintiffs instead claim that, due to defendant’s material omissions, they did not “receive the benefit of their bargain and thus overpaid for the Gerber Baby Food Products.” But to state a concrete and particularized injury, a plaintiff must do more than allege she did not receive the benefit she thought she was obtaining. “The plaintiff must show that she did not receive a benefit for which she actually bargained.”
Here, plaintiffs paid for safe and healthy food for their children and apparently received just that — the benefit of their bargain. Accepting the pleadings as alleged, plaintiffs’ only complaint is that the baby food products’ levels of heavy metals are “unsatisfactory to [them].” Without more, such an assertion does not amount to a concrete and particularized injury. as such, this court finds that plaintiffs’ benefit of the bargain theory of economic harm is insufficient to establish an injury in fact for the purposes of Article III standing.
Plaintiffs also assert that “Gerber’s omissions created a ‘price premium’ for the Products and thus Plaintiffs did not receive the ‘benefit of their bargain.’” Plaintiffs fall short of establishing a price premium theory of economic harm for the same reasons they do not successfully articulate a benefit of the bargain theory: they fail to allege any facts showing the value of baby food products was less than what defendant falsely represented or what plaintiffs believed it to be at the time of purchase.
Although plaintiffs allege they “overpaid” for defendant’s baby food products, they do not allege how much they paid for the baby food products, how much they would have paid had the material facts been disclosed or any other details regarding the alleged price premium. Accordingly, the court finds plaintiffs fail to plead an economic injury under either a benefit of the bargain or price premium theory; therefore, they lack standing to pursue monetary damages for their alleged claims.
In addition to monetary damages, plaintiffs seek an order enjoining defendant from selling the baby food products. Because they have not alleged a likelihood of continuing or future harm, however, plaintiffs lack standing to seek this form of equitable relief.
Primary jurisdiction
Defendant argues the FDA should determine what amounts of heavy metals are safe. Accordingly, defendant seeks dismissal of this case under the primary jurisdiction doctrine pending the FDA’s forthcoming determination on these issues.
Fourth Circuit precedent weighs in favor of finding the FDA has primary jurisdiction over the issues in this case. First, while the ultimate question of defendant’s liability for alleged material omissions is within the conventional experience of the court, resolution of plaintiffs’ claims depends on technical and policy considerations within the FDA’s field of expertise.
Second, the question at issue is particularly within the FDA’s discretion. Third, the substantial danger of inconsistent rulings also weighs in favor of finding the FDA has primary jurisdiction. Any decision by the court regarding what level of heavy metals is harmful enough to require a warning label on the baby food products will likely result in a patchwork of decisions that vary by location, court, manufacturer and product, resulting in different labeling standards for substantially similar baby food products produced by different manufacturers.
Defendant’s motion to dismiss granted.
In re: Gerber Products Company Heavy Metals Baby Food Litigation, Case No. 1:21-cv-269, Oct. 17, 2022. EDVA at Alexandria (Nachmanoff). VLW 022-3-470. 28 pp.
