Texas Sues Gerber on Baby Food Metals, Using Water Limits

Texas sued Gerber and Nestlé USA on October 9 over arsenic and lead in baby food, scoring 2017-2019 ingredient lots against bottled-water limits.

Attorney General Ken Paxton announced the Deceptive Trade Practices Act case on October 14. He said Gerber sold the food as safe, rigorously tested, and recommended by pediatricians while its own tests showed the metals. A Nestlé spokesperson said the claims are without merit and that Gerber’s products meet, and often exceed, U.S. safety benchmarks.

A Collin County Deception Suit, Filed October 9

Paxton sued Gerber and Nestlé USA in the 494th District Court in Collin County, case 494-08253-2026. The 68-page petition names Gerber Products Company and Nestlé USA, which has owned Gerber since 2007. It is a consumer-deception case, not a recall order and not an FDA enforcement action.

From 2017 through 2019, the filing says, Gerber used 67 batches of rice flour with more than nine times the arsenic federal rules allow in bottled water. Carrots ran up to 17 times the bottled-water cadmium limit. Sweet potatoes came in at nearly 10 times the lead limit. Gerber rarely tested for mercury, the office said, and for most of that stretch it tested selected ingredients rather than the finished food a baby eats.

Those metals are listed among the substances federal health agencies rank as the greatest potential threats to human health, the petition says, and it adds that there is no established safe level of lead or inorganic arsenic for a baby. The Collin County filing also asks for a temporary injunction that would limit Gerber’s safety claims if products fall short of federal toxic-metal limits.

Nestlé’s reply is the same line the company has used since the first congressional staff report on this testing: heavy metals are in soil and water, plants take them up as they grow, and they cannot be wiped out of the food supply. The spokesperson said Gerber screens products across more than 500 toxins and contaminants and uses sourcing, supplier rules, testing, and quality controls to cut the metals down.

The Nine-Times Arsenic Figure Uses Bottled Water

The shock math in the announcement is a water standard, not a baby-food one. FDA bottled-water rules in 21 CFR 165.110 cap arsenic at 10 parts per billion (ppb), lead at 5 ppb, cadmium at 5 ppb, and mercury at 2 ppb. Nine times 10 ppb is 90 ppb. The House documents behind the Texas numbers, and the petition’s own ppb figures, put those 67 rice-flour lots at more than 90 ppb inorganic arsenic.

Infant rice cereal is not bottled water. In August 2020 the FDA set a 100 ppb infant rice cereal cap for inorganic arsenic. That figure is an action level in guidance. The agency says its guidances do not create legally enforceable duties and should be read as current thinking unless a statute or rule is cited. Flour lots above 90 ppb sit under that 100 ppb cereal line, even as they sit far above the water line Paxton used in public.

Lead is a harder fact for Gerber. The FDA’s January 2025 lead action levels are 10 ppb for most processed foods for children under 2, and 20 ppb for single-ingredient root vegetables and for dry infant cereals. The agency said it may treat food above those lines as adulterated under the Food, Drug, and Cosmetic Act, while still calling the document guidance. Cadmium and mercury still have no final FDA action levels for baby food.

THE YARDSTICKS IN PARTS PER BILLION

The table is why the same lab slip can read as a scandal or as a near-miss. Rice flour over 90 ppb is nine times water and still under the cereal cap. Sweet potatoes at 48 ppb lead are nearly 10 times water and more than double the 20 ppb root-vegetable line. Carrots at 87 ppb cadmium have no U.S. baby-food cap to break, and they blow past both the 5 ppb water cap and the 40 ppb EU figure Plum accepted.

Rice Flour at 90 ppb Sits Under the Cereal Cap

Rice takes up arsenic from soil and irrigation water more readily than most other grains, which is why the FDA wrote a cereal-specific number in 2020 and left other infant foods without an arsenic action level. Agency sampling in 2018 found 76 percent of infant rice-cereal samples at or below 100 ppb, up from 47 percent in 2014. Selective buying of lower-arsenic rice, the FDA said then, was how makers were supposed to hit the line.

Ingredient lots and a finished box are not the same measurement. Flour can be blended, and cereal is the food the 100 ppb figure actually names. Texas still treats the 67 flour batches as proof that “safe” on the label was a false promise, because parents were not told about those tests.

Lead in Sweet Potatoes Breaks the 2025 Root Line

Root vegetables pull lead and cadmium from dirt. That is why the 2025 lead guidance gives sweet potatoes and carrots a 20 ppb line instead of 10 ppb. A sweet-potato lot at 48 ppb, if that number were applied to a finished single-ingredient puree today, would sit over the action level the FDA now says it may treat as adulteration.

The catch, and it is a dating problem rather than a chemistry problem, is that the lots Texas is using were tested in 2017-2019. The lead guidance did not exist. Gerber’s present defense is that products on shelves now meet the new U.S. lines. Paxton’s case is that the old tests, the old ingredient-only program, and the unchanged safety language still add up to deception.

A House Report Already Published These Ingredient Tests

The 67 flour batches, the 48 ppb lead, and the 87 ppb cadmium are not a 2026 lab sweep. They are the Gerber rows from a February 4, 2021 staff report by the House Subcommittee on Economic and Consumer Policy, which reviewed internal testing from Gerber, Beech-Nut, Hain Celestial, and Nurture. The subcommittee compared those results with bottled water then, too, using the same 10 ppb, 5 ppb, and 5 ppb caps.

THE FIVE-YEAR PAPER TRAIL

1. August 5, 2020: FDA finalizes a 100 ppb action level for inorganic arsenic in all types of infant rice cereal and says the document is guidance, not a new binding rule.
2. February 4, 2021: House staff publish Gerber’s 67 rice-flour lots over 90 ppb, sweet potatoes as high as 48 ppb lead, and carrots as high as 87 ppb cadmium, and flag ingredient-only testing.
3. September 29, 2021: A follow-up staff report cites Alaska state-lab tests of finished rice cereal and notes Beech-Nut recalled cereal while Gerber did not.
4. January 6, 2025: FDA issues final lead action levels of 10 ppb and 20 ppb for processed foods for children under 2. Cadmium and mercury remain without baby-food action levels.
5. January 1, 2025: California requires public heavy-metal results and a label QR code for baby food sold in the state. Large brands extend the codes nationwide.
6. August 2025: Paxton’s office issues civil investigative demands to Gerber and Plum Organics.
7. September 29, 2026: Texas announces an assurance of voluntary compliance with Plum on testing, caps, and public results.
8. October 9, 2026: Texas files the Gerber and Nestlé USA petition in Collin County, then announces it on October 14.

Five years on, the public argument is still “metals in the jar.” The legal argument has moved. FDA wrote numbers for lead and for arsenic in rice cereal, California forced finished-product testing onto labels, and Texas is now asking a state court to treat “safe” and “pediatrician recommended” as promises that those older lots already broke.

Beech-Nut Pulled Infant Rice Cereal After Alaska Tests

Paxton’s announcement leans on a contrast the 2021 follow-up already drew. Alaska’s state laboratory, the attorney general said, found two samples of Gerber rice cereal that exceeded the federal arsenic limit. Beech-Nut’s cereal tested lower on average, yet Beech-Nut recalled it and stopped selling infant rice cereal. Gerber issued no heavy-metal recall or warning and kept selling. Gerber has recalled items for plastic and choking hazards, the office said, but never for heavy metals.

The House follow-up put numbers on that Alaska work. Gerber rice cereal tested as high as 116 ppb inorganic arsenic and averaged 87.43 ppb. Beech-Nut tested as high as 125 ppb and averaged 85.47 ppb. Average Gerber cereal in that set sat under 100 ppb. The top Gerber samples did not. That finished-product overage is a different fact from the 90 ppb flour lots, and it is the one place Texas can point to cereal that crossed the FDA’s own arsenic line.

Gerber’s choice in 2021 was to stay on the market, keep testing, and wait for Washington to finish Closer to Zero. Beech-Nut’s choice was to leave rice cereal. The Texas petition treats the first choice as evidence that safety claims on the jar were hollow. Nestlé treats it as proof the company already lives inside U.S. benchmarks that, for arsenic in cereal, sit at 100 ppb.

The Plum Deal Puts EU Caps on Texas Shelves

Two weeks before the Gerber filing, Paxton announced an agreement with Plum Organics that he called the first of its kind. The probe of both companies started with civil investigative demands in August 2025. Plum signed an assurance of voluntary compliance. Gerber got a lawsuit.

Plum said the paper did not change how it already tested or sold food and only wrote those practices into a Texas court file. The attorney general is holding the deal out as the standard other makers should meet. The gap between the two outcomes is the EU figures FDA has not adopted.

WHAT PLUM SIGNED FOR TEXAS

• Lead: Follow FDA’s January 2025 guidance on action levels for processed food for babies and young children.
• Cadmium: Follow current EU guidance, set in the agreement at 40 ppb, because FDA has no baby-food action level.
• Inorganic arsenic: Follow current EU guidance, set in the agreement at 20 ppb, again with no FDA baby-food action level beyond rice cereal.
• Mercury: Use a 10 ppb internal cap on baby-food pouches, with no FDA or EU baby-food action level to copy.
• Holds: Do not ship a lot if pre-release testing shows it exceeds the cap that applies.
• Disclosure: Keep posting lot results for Texas products, searchable by UPC, lot, or best-by date, with a QR code where FDA lead guidance applies.

Twenty ppb of inorganic arsenic is one-fifth of FDA’s rice-cereal action level. Flour lots over 90 ppb, and Alaska cereal samples at 116 ppb, would fail the Plum paper and still sit in the band FDA has tolerated for cereal since 2020. That is the holdout bet. Nestlé is arguing U.S. benchmarks. Texas already has one national brand on a tighter European yardstick and is trying to drag the largest baby-food maker onto the same page through the DTPA rather than through FDA.

What the Petition Wants Off Gerber’s Front Label

Gerber now publishes batch tests behind a QR code, a practice the company rolled out to meet California law and then put on jars nationwide. The California baby-food QR code rule, AB 899, required monthly testing of finished baby food for arsenic, cadmium, lead, and mercury, website posting of those results from January 1, 2025, and a code on the label linking to the numbers and to FDA guidance. Paxton’s answer is that disclosure on the back does not rescue a claim on the front.

Gerber promised parents its food was safe and rigorously tested. Its own tests showed toxic metals in the food. When a company makes promises about what parents feed their babies, I will hold it accountable to ensure those promises are kept.

Ken Paxton, Attorney General of Texas, October 14, 2026 statement

He added that the metals in the food did not change when the QR code arrived, and that a code on the back of the jar does not cure a false promise on the front. The petition’s work, if a Collin County judge buys that theory, is to police adjectives. Safe, pure, rigorously tested, recommended by medical professionals: those phrases become DTPA problems if a 2017 rice-flour lot or a 2021 cereal sample can be read against a water cap, an EU cap, or a 2025 lead line.

Nestlé is not arguing the metals are absent. The spokesperson said they are common in the environment and show up in trace amounts in some fruits, vegetables, and grains as those crops grow, and that Gerber has long tried to cut them through sourcing, supplier rules, testing, and quality controls. The company says current products already clear U.S. benchmarks. Paxton says the front of the jar still talks like the tests never happened.

The case now sits in McKinney as State of Texas v. Gerber Products Company and Nestlé USA, Inc. Plum’s paper is already on file in the same county. Gerber’s jars still carry the safety language and the code. The numbers Texas is using have been public since 2021. What is new is which measuring stick a state court is being asked to treat as the meaning of “safe.”

Disclaimer: This article is news reporting and analysis of a civil lawsuit, company statements, and federal food guidance. It is informational only and is not medical advice, legal advice, or a finding that any baby-food product is safe or unsafe to feed a child. Readers with questions about infant feeding or possible metal exposure should talk with a pediatrician, and anyone weighing a claim should talk with a licensed attorney in their state. The figures, testing results, and case status described here come from the public filings and agency documents named above and can change as the Collin County case moves.