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Walmart on hook over claims of heavy metals in spices

Heavy metals like arsenic, cadmium and lead have been found in a third of herbs and spices tested by Consumer Reports.

SAN FRANCISCO (CN) — A federal judge advanced claims that some products in Walmart's Great Value line of spices may contain toxic heavy metals, and that the retail giant failed to warn customers of those metals and potential health risks.

Plaintiffs Susan Gagetta and Traice Gomez say in a class action filed this past June that Walmart failed to tell customers that certain herbs and spices in its Great Value line including basil, chili powder, ground cumin and organic paprika and ginger, may contain lead, arsenic and cadmium. Both plaintiffs are Walmart customers living in California. 

They cited a November 2021 report “Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead” from Consumer Reports, which analyzed 126 individual products from national and private-label brands, including Walmart’s Great Value, and determined a third of the tested products had high enough levels of arsenic, lead, and cadmium combined, on average, “to pose a health concern for children and adults when regularly consumed in typical serving sizes.”

Heavy metals in foods can cause cancer and serious, possibly irreversible damage to brain development along with other serious health issues. Exposure to lead may cause anemia, weakness and kidney and brain damage, which affect almost every organ and system and accumulates in the body over time. Arsenic can cause bladder, lung, liver and skin cancer, as well as strokes and diabetes. 

The plaintiffs say Walmart knew customers would be unwilling to purchase, or would pay less for, these products if they knew that they contained toxic heavy metals, and “intentionally and knowingly concealed this fact from customers” by not disclosing the presence or risk of toxic metals on product labels.

“No reasonable consumer would know, or have reason to know, that the products contain (or risk containing) heavy metals,” the plaintiffs say in their complaint. “Worse, as companies across the industry have adopted methods to limit heavy metals in their herbs and spices, defendant has stood idly by with a reckless disregard for its consumers’ health and well-being.”

They seek a trial and a court order barring Walmart from selling and marketing products with misleading labeling, and requiring the company to disclose that products contain heavy metals and notify everyone who purchased those products of the pending class action.

In a motion to dismiss, Walmart said the putative class relies on “false information debunked by judicially noticeable, science-based facts published by federal agencies in charge of overseeing this nation’s food supply.” The company cited statements by the Food and Drug Administration and U.S. Department of Agriculture that naturally occurring arsenic, cadmium and lead are “ubiquitous” in the food supply no matter how an agricultural product is cultivated, and cannot be avoided. 

Walmart also said that the plaintiffs failed to state a claim because they have not alleged any physical or economic injury from purchasing Great Value herbs and spices and do not say with certainty that those products contained heavy metals.

In a ruling late Wednesday, U.S. District Judge William Orrick III tossed implied warranty claims for failure to state a claim but found the main question of the case — whether the products contained a dangerous level of metals — cannot be decided at this stage in the proceedings and must advance. 

Orrick found the plaintiffs have put forth an adequate theory of injury for most of their causes of action due to risk, because they would have not have purchased the products if they had known about any contamination and because Walmart does not contest that its products probably contain heavy metals. He added that it is “a hotly contested issue of fact” on whether any level of the metals is safe, making it inappropriate to resolve in a motion to dismiss. 

However, Orrick agreed with Walmart that the plaintiffs failed to show the company breached the implied warranty under the Song-Beverly Act — requiring that products are fit for the purposes they are used for — because they do not show the products “were without the most basic degree of fitness” or “failed to perform their most basic function of flavoring or seasoning.” 

He gave the plaintiffs until Jan. 9 to file an amended complaint. Attorneys for the plaintiffs and Walmart did not respond to requests for comment before deadline.

Spice giant McCormick faces a similar putative class action, also filed in San Francisco federal court this past January.

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