In re Nurture Baby Food Litigation

Background

Parents filed a consolidated class-action case against Nurture LLC, formerly Nurture Inc., concerning Happy Family Organics baby food products. They alleged that Nurture marketed the products as organic, nutritious, high-quality, and made under strict safety standards, while failing to disclose the presence or material risk of heavy metals, perchlorate, and other contaminants. The plaintiffs relied on allegations drawn in part from a February 2021 congressional report concerning arsenic, lead, cadmium, and mercury in baby food.

The plaintiffs alleged economic—not physical—injury. They said they paid the purchase price or a price premium for products they would not have bought had Nurture disclosed the alleged omissions. The amended complaint asserted state-law consumer-protection, false-advertising, fraud, fraudulent-omission, and unjust-enrichment claims under the laws of New York, Minnesota, Washington, Illinois, and California.

Nurture moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint adequately states a legal claim. Nurture argued that the plaintiffs lacked standing, that the Food and Drug Administration should address the subject first, that federal law preempted the state-law claims, and that the complaint failed to plead injury, deception, materiality, fraudulent intent, a duty to disclose, and other claim-specific requirements.

Standing and Primary Jurisdiction

The court held that the plaintiffs adequately alleged standing. It found that allegations of paying for products they otherwise would not have purchased, or paying more than they otherwise would have paid, plausibly alleged a concrete financial injury. The plaintiffs also plausibly connected that injury to Nurture’s alleged omissions. The court did not address physical-injury theories because the consolidated case involved economic injury, and the plaintiffs were not pursuing physical-injury claims in this action.

The court declined to dismiss under the primary-jurisdiction doctrine, which permits a court to defer to an agency with specialized expertise in appropriate circumstances. The court noted that the Food and Drug Administration had issued final action levels for lead in processed baby food, but had delayed action levels for cadmium and arsenic and had not provided a definite timeline. Relying in part on a Second Circuit decision involving similar baby-food claims, the court concluded that the likely delay outweighed the potential benefits of waiting for further agency action.

Federal Preemption

The court rejected Nurture’s federal-preemption argument. It explained that conflict preemption applies when state law cannot coexist with federal law or obstructs federal objectives. Nurture, however, had not identified a specific federal law or regulation with which the plaintiffs’ claims conflicted. The court also concluded that general Food and Drug Administration authority, statements, advisory materials, and nonbinding guidance did not preempt the claims concerning heavy metals and perchlorate.

Pleading of Injury and Omission-Based Claims

The court held that the plaintiffs adequately pleaded injury under the relevant state statutes and common law. Their allegations that they would not have purchased the products or would not have paid the same price were sufficient at the motion-to-dismiss stage. The court also held that the plaintiffs adequately alleged that the presence or material risk of heavy metals and perchlorate was material to reasonable consumers.

The court further found sufficient allegations of fraudulent intent and a duty to disclose. The plaintiffs alleged that Nurture internally tested products, knew about heavy-metal levels, sold products regardless of test results, and promoted its testing and safety practices without disclosing the alleged test results and product conditions. The court declined to resolve on the pleadings whether information in the public domain was readily available to ordinary consumers or whether consumers could reasonably interpret it.

Dismissed Claims

The court dismissed the unjust-enrichment claim as duplicative because it relied on the same facts and economic damages as the other claims and did not allege distinct damages.

The court also dismissed the California False Advertising Law and Unfair Competition Law claims. The plaintiffs were no longer seeking injunctive relief, and the court found that they had not shown that they lacked an adequate legal remedy for the restitution they sought. Their requested restitution was not shown to differ from the damages sought under other legal theories.

The court rejected Nurture’s additional arguments concerning California’s economic-loss doctrine and the timeliness of certain California and Washington claims. It held that the California fraudulent-concealment claim was independent of any contract claim and that the allegations supported application of delayed discovery. It also held that one plaintiff’s claims were timely under the relation-back doctrine.

Disposition

The court ordered that Nurture’s motion to dismiss was DENIED in part and GRANTED in part. The court stated that the plaintiffs had standing to assert all their claims, that the claims were not preempted by federal law, and that it would not decline to hear them under the primary-jurisdiction doctrine. The unjust-enrichment claim and the California False Advertising Law and Unfair Competition Law claims were dismissed. The court ruled that all other claims were legally sufficient to state a claim. Because this was a Rule 12 motion addressing whether claims could proceed, the opinion was a procedural order rather than a final decision on the truth of the allegations or ultimate liability.