Emerging Litigation Targets Arsenic in Baby Food
Droughts caused by climate change have elevated the amount of heavy metals found in rice. Insurers must help clients manage this risk.
- Robert Reville and David Loughran
- May 2021
A new type of climate change litigation has arrived and it is not what you think. You know about ongoing climate lawsuits against oil, gas and coal companies. The catastrophic, climate-induced wildfires that spawned lawsuits against California utilities are fresh in our memories. But recent lawsuits filed against baby food manufacturers over elevated levels of arsenic and other heavy metals represent an entirely new kind of climate-related litigation that insurers will likely see increase in coming years.
Rice is known to draw inorganic arsenic from soil, though historically in manageable amounts. In recent years, however, more-frequent droughts have increased the amount of arsenic in soil, while rising temperatures have been shown to escalate its absorption. The result is a looming global food-supply crisis in which, over the next 50 years, a significant fraction of agricultural land dedicated to this staple food is expected to generate rice that is potentially unsafe for human consumption. When rice is converted into products such as flour, formula, milk and cereal, all used in baby foods, the problem becomes one of product liability for baby food manufacturers.
Scientists have long understood that arsenic poses serious health risks. Arsenic is a known human carcinogen, according to regulators worldwide. Arsenic exposure is also associated with diabetes, heart disease, and reproductive and neurological impairment. The U.S. Environmental Protection Agency has set the standard for arsenic in drinking water at 10 ppb.
In early February, the House Committee on Oversight and Reform reported that four baby food brands—Beech-Nut, Gerber, Happy Family Organics and Earth's Best Organic—contained elevated levels of heavy metals including inorganic arsenic. Inorganic arsenic was found in baby food at levels between 129 ppb and 180 ppb, and ingredients were tested at levels as high as 913 ppb. The U.S. Food and Drug Administration issued guidance in August 2020 limiting inorganic arsenic in infant rice cereal (but not baby food generally) to 100 ppb. Some consumer advocates, though, believe a standard as low as 5 ppb may be necessary to protect infants and children.
At least 43 lawsuits have been filed in the wake of the House report, and plaintiffs now seek to consolidate these lawsuits in multidistrict litigation. The lawsuits allege that consumers would not have purchased baby food from the four brands had they known they contained elevated levels of inorganic arsenic and other contaminants. A putative class action filed by a Staten Island mother goes further in demanding defendants pay for medical monitoring and any costs associated with treating their children for damage they suffer from the heavy metals consumed in baby food.
More generally, in 2019 the World Health Organization published a study on a range of food- safety-related climate risks. The study highlighted heavy metals, including arsenic, in food as one example. An increased risk of food borne illness is another. Yet another is illustrated by a recent study finding that a 1-degree increase in water temperature increases mercury, a highly toxic metal, in fish by 3% to 5%.
Patterns of latent climate-related litigation risk may emerge for other products and businesses as well. For instance, a recent study found that expected shifts in weather patterns may significantly increase mold in buildings in many cities.
We expect these slower-moving environmental shifts to generate as much litigation, with a wider industrial footprint, than the direct litigation against energy companies observed today. Insurers will need to monitor the science carefully and work with their clients in a wide range of industries to manage this risk.
Best’s Review contributors Robert Reville is chief executive officer of Praedicat, and David Loughran is senior vice president of product and chief economist. They may be reached at firstname.lastname@example.org.