Gerber Products Co. filed a $150 million suit yesterday charging that Maryland Gov. Harry Hughes and other state officials misled and unduly frightened consumers by banning sale of some of the firm's baby food because of reports that some jars contained broken glass.
Meanwhile, major stores in the District of Columbia and Northern Virginia began taking Gerber products off their shelves.
The Gerber lawsuit, filed in U.S. District Court in Baltimore, asks that Maryland be restrained from banning the sale of Gerber strained peaches. It charges that Maryland officials issued the ban without evidence to support reports that glass was found in several jars of the peaches.
"The defendants have issued statements to the public which are inaccurate, misleading and false, resulting in public confusion, fear and apprehension concerning the safety of Gerber baby food products," the suit alleges.
Maryland officials yesterday defended the order, issued Sunday night, that merchants take Gerber strained peaches out of stores.
"The state feels very strongly that its action was appropriate and correct," Assistant Attorney General Dennis Sweeney said. A federal judge is expected to consider today the state's request to dismiss the suit on procedural grounds, he said.
In addition to Hughes, the suit names as defendants Stephen H. Sachs, state attorney general; Adele Wilzack, secretary of the state Department of Health and Mental Hygiene, and David L. Resh Jr., administrator of the department's community health program.
The suit alleges that Maryland officials disregarded a Food and Drug Administration finding that similar reports received nationwide were isolated incidents that did not warrant a recall.
The FDA said yesterday that only two of 17,000 jars of Gerber baby food examined turned up fragments of glass, although particles had been confirmed in 14 jars submitted by consumers.
Lynn Doyle, a health department spokeswoman, said the order banning sale of the peaches was made after state officials confirmed that four jars with identical or consecutive lot numbers, obtained from consumers, contained pieces of glass.
These jars were purchased in Baltimore and Cecil counties, she said. Officials declined to release the affected lot numbers.
In addition, she said, an 8-month-old child from Randallstown who ate several Gerber products late last week was found to have ingested glass sometime during that period.
State examiners found glass shards in the child's stool Saturday, according to Doyle. The child was reported in good condition.
"The fact that we have an incident coupled with the physical evidence prompted the governor and the secretary of health to take action to protect the children of Maryland," Doyle said.
State officials also suggested that consumers not use any Gerber fruit products and many local stores have stopped selling any Gerber strained fruits.
Officials said the state's investigation included examination last week of 600 jars of Gerber baby food. They said no pieces of glass were found in those jars.
Giant and Safeway grocery store officials said they have removed all Gerber fruit products from their stores in the District, Northern Virginia and Maryland and would offer refunds to consumers who request them.
"If in fact there's a problem . . . then it would be wrong to sell the baby food in Virginia and D.C., too," said Safeway spokesman Ernest G. Moore.
At least 15 states, including Virginia and West Virginia, have had reports of contaminated Gerber baby food, but Maryland is apparently the only state to ban its sale.
Consumer leaders applauded the Maryland decision yesterday and criticized Gerber, which has maintained the incidents are isolated.
"If they're saying that it's a minimal amount of glass I would say they ought to look at [Tylenol maker] Johnson & Johnson for responsible action," said the Washington director of Consumers Union, Mark Silbergeld. Johnson & Johnson withdrew Tylenol capsules from the market last week after capsules in two bottles were found to have been contaminated with cyanide.
Much of the 16-page Gerber lawsuit alleges loss of business in Maryland, where the company says 8 million in sales have been affected.
Gerber sold 1.4 billion jars of baby food last year, with sales of about $929 million. The company is suffering "severe financial injury including loss of good will, irreparable damage to its business reputation, loss of future sales" among other things, according to the suit.