A California law requiring baby food makers to test their products for toxic heavy metals is expected to surpass FDA guidelines in the race to pressure manufacturers to limit exposure, food safety groups say.
California Gov. Gavin Newsom (D) on Oct. 10 signed the law (AB 899) requiring baby food manufacturers both in and out of the state to begin conducting monthly tests in January measuring levels of lead, mercury, cadmium, and arsenic in their products.
By 2025, baby food makers will have to publicly disclose test results, and include in a product’s label if it meets the recommended heavy metal limit set by the Food and Drug Administration.
Food safety groups say California’s law is a necessary step to press manufacturers to do more to limit heavy metal exposure in the absence of swift federal action on the issue.
“The new law could spur action by companies where FDA hasn’t made progress, and will help parents choose safer foods for their children,” said Jane Houlihan, research director at Healthy Babies Bright Futures. The organization focuses on promoting awareness of children’s exposure to toxic substances.
Kevin McKie, an attorney at Environmental Litigation Group, said the law could give consumers greater support in bringing legal claims against companies for exposure to toxic substances. Early exposure to heavy metals has been linked to developmental problems and other health issues, and it has been a key issue for policymakers at the state and federal level.
But the FDA has yet to finalize federal action levels for metals in baby foods, and it has fallen behind on its goals for proposing limits on lead and other toxic metals.
The agency is completing scientific evaluations and plans to issue draft guidance in 2024 proposing action levels for arsenic and cadmium in foods intended for babies and young children, an FDA spokesperson said in an email. Draft action levels for mercury will come in the future, according to the spokesperson.
If the agency determines that the proposed limits should be finalized, that process could wrap up by early 2025, the spokesperson said.
Widespread Issue
A recent Bloomberg Law investigation found that toxic elements in baby food is a widespread problem in the US. All but one of 33 baby food products purchased by Bloomberg Law and tested by an accredited laboratory were found to contain at least two of three heavy metals: lead, arsenic, or cadmium.
These elements largely stem from the environment where fruits, vegetables, and grains like rice grow. Heavy metals can be reduced by using soil that is low in metals, investing in irrigation systems, and choosing specific crop varieties.
Heavy metals in baby foods have spawned lawsuits, many of which allege that manufacturers knew about the elements in their products and that children who consumed them developed disorders like autism.
Under California’s new law, companies by 2025 must add quick response codes, commonly known as QR codes, to their baby food products so consumers can access the results of toxic elements tests online.
The law prohibits people and businesses from selling or possessing any baby foods that don’t comply with the new standards.
“We are hopeful that requiring baby food companies to test and publicly disclose their heavy metals results will motivate them to proactively lower the levels in their products,” Houlihan said.
Gerber plans to fully comply with the law, a spokesperson for the baby food maker said in an email, including by disclosing test results online. The spokesperson added that the company already adopts strict standards for minimizing heavy metals in the ingredients it uses for its products, such as by testing soil before determining growing locations.
Beech-Nut, another major baby food manufacturer, said in an emailed statement that it’s “reviewing the new California law to determine how it fits with federal standards governing food and food safety in the United States.”
No baby food manufacturer has publicly disclosed plans to levy a legal challenge, but McKie said it’s not out of the question.
“I”m sure companies will challenge it,” but success isn’t likely since states often have authority to regulate above federal standards, McKie said.
Because California is so large, manufacturers could decide that it’s worth it to make their products comply with the state’s standards, he said. At minimum, AB 899 could help support toxic tort lawsuits against baby food companies, an area of law that’s likely to grow, according to McKie.
Scott Faber, senior vice president of government affairs at the Environmental Working Group, called California’s new law a “game changer” that will “transform the national baby food market.”
“Once companies have to test and report, they are going to scurry to clean up their supply chains,” he said.
FDA Response Lags
Tom Neltner, the Environmental Defense Fund’s senior director for safer chemicals, said California’s law will “provide a subtle but important push to lower the levels further,” but “the effect that will happen will be mostly once FDA finalizes its action levels.”
Federal lawmakers and FDA critics have repeatedly faulted the agency for delays in finalizing limits on lead and other heavy metals in baby food products. Amid a congressional probe, the agency started its Closer to Zero plan in April 2021 to establish guidelines for toxic metals in foods consumed by babies and young children.
But the FDA has missed goals it set at the start of the program and also quietly removed some deadlines from its website just weeks after Bloomberg Law published its investigation in January.
The FDA defended the changes to its Closer to Zero website, referring to it as a “living” plan with goal dates that “are estimates based on the current state of evolving science, the agency’s analysis of relevant data, and the regulatory process for developing and issuing guidance to industry.”
It’s unlikely that the administration would require testing and reporting in a way that would single-handedly force companies to change their sourcing and manufacturing practices, Faber said. But the upcoming FDA rules and California’s new law will “complement” each other as the administration sets regulatory limits and the state exceeds them, he said.
The FDA initially planned to issue draft action levels for lead by April 2022, but didn’t send proposed levels to the White House’s Office of Management and Budget until that month. OMB didn’t complete its review of the draft guidance until January of this year.
The FDA’s draft guidance on lead didn’t include action levels for grain-based snacks like puffs and teething biscuits. Multiple brands of teether crackers, puffs, and other baby food snacks tested by Bloomberg Law included levels of lead higher than the agency’s 10 parts per billion proposed limit for other baby foods.
The presence of metals in agricultural fields and fertilizers makes addressing the issue difficult, Neltner said. But he argued the California law will help bring transparency to the baby food market where oversight has previously been limited.
“There’s no easy answers, and that’s why that disclosure becomes so important,” Neltner said. “Customers should be able to make informed choices.”