Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Most heavy metal consumer claims against baby food manufacturer Nurture survive dismissal, (Apr 1, 2025)

By Justin Marcus Smith, J.D.

The court declined to defer to FDA expertise where the agency had not yet set final standards for heavy metals, other than lead, in baby food.

Consumers who brought a consolidated class action against baby food manufacturer Nurture LLC, in connection with alleged heavy metal contamination, had standing to assert all of their claims; federal law did not preempt the claims; and, there was no reason to apply the primary jurisdiction to refer the matter to the FDA because the FDA had not set final standards, held the federal district court in New York City. The court also declined to dismiss the consumers’ state law, common law fraud, and unjust enrichment claims on the basis of insufficient pleading where the consumers adequately pleaded pecuniary injury. As pleaded, that alleged injury was also fairly traceable to Nurture’s alleged omissions about heavy metal contamination. However, the consumers’ unjust enrichment claim was duplicative. The consumers also could not pursue their California Unfair Competition Law and False Advertising Law claims because the consumers did not show they lacked a legal remedy and those statutes did not create a private right for the consumers to seek money damages (In re Nurture Baby Food Litigation, No. 1:21-cv-01217-MKV (S.D.N.Y. Mar. 26, 2025)).

Background. Parent-consumers in New York, Illinois, California, Minnesota, and Washington brought a consolidated class action against baby food manufacturer Nurture. The instant action was one of a series of cases against Nurture. The consumers said they bought Nuture’s baby food products because Nurture described them as meeting rigorous ingredient and quality standards. The consumers said they relied on such assurances, but a 2021 Congressional Report found the presence of “significant levels” of heavy metals in common baby food products, including Nuture’s baby foods. The consumers said they would not have bought the baby foods, and certainly would not have paid a premium price for them, had Nurture disclosed the presence of heavy metals and perchlorate in the baby foods. The consumers said the failure to disclose that information amounted to omission of material information to reasonable consumers.

The consumers filed an amended consolidated class action complaint (FAC) individually and on behalf of all others similarly situated asserting claims for violations of various state laws including California’s Consumers Legal Remedies Act (CLRA), False Advertising Law (FAL), and Unfair Competition Law (UCL) (Count IX—XI); fraudulent misrepresentation by omission under Illinois and Minnesota state law (Count XII); fraud by omission under state law (Count XIII); and unjust enrichment under state law (Count XIV).

The FAC cured deficient jurisdictional allegations, so the court found it had jurisdiction under the Class Action Fairness Act (CAFA) and granted Nurture leave to file a motion to dismiss. Nurture then moved to dismiss the FAC pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). After oral argument, the parties submitted letters at court request about the effect of Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) on the continued viability of the primary jurisdiction doctrine. The primary jurisdiction doctrine supports federal court discretion to refer a matter to an administrative agency that has more specialized experience, expertise, and insight. Nurture argued the court must dismiss the FAC because 1) the consumers did not plead injury sufficient to a) allege standing and b) to state a claim for relief; 2) the primary jurisdiction doctrine mandated dismissal in deference to the FDA; 3) federal law preempted the consumers’ claims; 4) the consumers’ omission-based claims failed to state a claim for relief; 5) the consumers’ unjust enrichment claim failed to state a claim for relief; and, 6) certain state claims failed for state-specific reasons.

Standing. The court held the consumers adequately alleged Article III standing. First, the consumers plausibly alleged injury-in-fact insofar as they said they paid a premium price when they would not have done so but-for Nuture’s alleged omissions about heavy metals and perchlorate in the baby foods. The court found overpayment is a standard injury concept in the Second Circuit.

Nurture questioned whether the consumers had done sufficient testing to link their own baby food purchases to the alleged presence of contaminants, but the court said it was satisfied the consumers plausibly alleged heavy metals were found “throughout” the baby foods. The consumers alleged Nurture itself had done such testing, and the Congressional Report contained similar findings. The court took judicial notice of the existence of the Congressional Report and other reports the consumers incorporated into the FAC by reference. It said it did so only to determine what the documents stated and the consumers’ plausible reliance on such statements in bringing the complaint.

The court rejected Nurture’s reliance on out-of-circuit decisions that set a more stringent standard for analyzing the type of economic harm the consumers alleged here. In the Third Circuit, for example, the consumers would have had to allege that Nurture unlawfully advertised its product as “superior” to others. The court said the consumers might have met that stricter standard, but they did not need to in the Second Circuit. The court found the consumers pleaded injury-in-fact.

Next, the court found the consumers adequately argued that their alleged economic injury was “fairly traceable” to Nurture’s omissions. Nurture argued that public knowledge of the contaminants contradicted the consumers’ allegation that they would not have bought the baby foods absent Nurture’s alleged omissions, but the court said Nurture’s cited cases were off-point. The court found the instant consumers alleged they would not have bought the baby foods absent alleged omissions.

FDA uncertainty. The court held the FDA did not have “primary jurisdiction.” As Nurture acknowledged at oral argument, there have been no binding Second Circuit opinions analyzing the impact of Loper Bright on the discretionary primary jurisdiction doctrine. The court said Second Circuit courts have continued to analyze potential applicability of the primary jurisdiction doctrine after Loper Bright. The parties agreed at oral argument that the FDA has not yet established final action levels for cadmium and arsenic in processed baby food. Accordingly, the court said it was concerned about attendant costs and delays that might result from deferring to FDA action.

No preemption. The court held federal law did not preempt the consumers’ state law claims. Again, the FDA had not even proposed, much less finalized, action levels for the presence of heavy metals, other than lead, or perchlorate in baby food products. The FDA did not even have a timeline. Without finalized regulations, there could be no preemptive effect.

Claims stated. The court declined to dismiss the consumers’ state law, common law fraud, and unjust enrichment claims for insufficient pleading where, as already discussed with respect to standing, the consumers adequately pleaded pecuniary injury. The court already found the consumers alleged they would not have bought the baby foods or would not have paid a premium price for them, but for Nurture’s alleged omissions. The court said the dismissed cases Nurture cited were inapposite because they involved failure to establish a false or deceptive statement, not failure to allege an injury, as Nurture argued here. The cases were also factually distinguishable because the instant consumers, relying on the Congressional and other reports, alleged that heavy metals and perchlorate had potentially harmful effects, so instant consumers did raise a plausible inference that Nurture advertising was deceptive. And again, as previously noted, the Third Circuit cases Nurture cited relied on were inapplicable in the Second Circuit.

Next, the court analyzed that the consumers adequately pleaded their omission-based claims. The court again distinguished the cases Nurture cited. Several cases were about contaminants that were not alleged to be toxic or carcinogenic, whereas the instant consumers specifically alleged the presence of heavy metals or perchlorate was “material information to reasonable consumers.”

As to Nurture’s argument that the consumers did not plead fraudulent intent, the court found the FAC contained enough facts to infer it. The consumers alleged that Nurture sought to capitalize on consumer beliefs about high-quality ingredients and standards and also alleged, drawing at least in part on the Congressional Report, that Nurture actively concealed material facts.

Next, Nurture said it had no duty to disclose for omission to apply, but the court found the consumers adequately alleged that Nurture “had knowledge of material facts not known to Plaintiffs sufficient at the pleading stage to plausibly allege a duty to disclose.” The consumers alleged that Nurture had done internal testing; sold all baby foods produced regardless of such testing; and flouted FDA and internal testing standards.

As to whether Nurture tried to suppress relevant information, the consumers alleged Nurture failed to disclose the actual levels of heavy metals in the baby foods. As to whether Nurture engaged in deceptive omission, the court found the consumers’ allegations were more than conclusory. The consumers alleged they were unaware the baby foods contained or had a material risk of containing heavy metals or perchlorate. They also alleged that reasonable consumers lacked the expertise to learn otherwise. The court said the public availability of FDA statements and other documents referenced in the FAC could not properly refute the consumers’ allegations about their lack of knowledge at the pleading stage, per Second Circuit precedent.

Unjust enrichment. The court granted dismissal of the consumers’ unjust enrichment claim because it was duplicative of the consumers’ other claims. The consumers also did not show that Nurture unjustly retained a benefit.

UCL, FAL. The court also granted dismissal of the consumers’ state claims under the California UCL and FAL because the consumers could not show that remedies at law were inadequate.

State-specific arguments. The court held the economic loss rule did not bar the consumers’ claim for fraudulent concealment under California law. The claim was independent of any breach of contract. The consumers could proceed on that claim.

The case is No. 1:21-cv-01217-MKV.

Judge: Vyskocil, M.

Attorneys: Lori Gwen Feldman (George Feldman McDonald PLLC) for Nicole Stewart. Colleen Gulliver (DLA Piper US LLP) for Nurture, Inc.

Companies: Nurture, Inc.

Cases: Advertising StateUnfairTradePractices NewYorkNews