Legal Corner: You’ve Gouda Be Kidding Me – Lawsuits Over Mac & Cheese Could Be Hard to Swallow

A new study has found that boxed macaroni and cheese contains a hazardous chemical causing birth defects. It can also be harmful to young children.

The study discovered phthalates in macaroni and cheese products that contain powdered cheese. It points out that although the presence of phthalates is unintentional, the envelope of powdered cheese flavoring has a high concentration of the chemical, which is believed to migrate into food through contact with the plastic equipment and packaging.

Exposure to phthalates in pregnant women appears to block production of testosterone in the developing male fetus, raising the risk of malformed reproductive organs as well as infertility, low sperm counts, and a heightened risk of testicular cancer, according to a July 12 New York Times article on the study. Exposure to phthalates in early childhood can cause aggression, hyperactivity, and cognitive delays, the Times article said.

Even though the risk of birth defects related to phthalates is known, establishing a link between illness and consumption of a particular product could be difficult. The most difficult part of the legal claim is establishing “causation.”

In the legal world, “causation” has two elements:

• Factual cause
• Proximate cause

Factual cause is “but for” test. This means that “but for” the conduct of the wrongdoer, the injury would not have happened. In plain terms, this asks that if the wrongdoer had done nothing, would the injury still have occurred? If the answer is yes (the injury would have occurred anyway), then there is no factual causation.

Proximate cause is a little trickier. Even if we have factual causation, in some cases, the law decides that a person is not liable. For example: “But for the defendant’s grandmother being born, the defendant would not have committed the crime.” Clearly, we don’t hold grandmothers accountable for the crimes of their grandchildren.

The best way to describe proximate cause is in terms of foreseeability. If the defendant should have foreseen that his conduct would cause injury, then he is said to have proximately caused the injury.

In the case of chemicals in mac and cheese products, it might be difficult to establish that the manufacturer should have known its packaging and equipment would cause contamination.

Since this story came out, there have been talks of establishing a class-action lawsuit. This may be a viable option, especially if long-term medical monitoring is involved. A large class of consumers may also put more pressure on the manufacturers to address the issue.

If you suspect your child developed medical conditions or birth defects due to a toxic chemical, contact an attorney in your area to discuss your situation.

About The Author

Michael Levenson has extensive experience working for insurance companies and in the health care field. Prior to joining InsureYourCompany.com, Michael was an attorney with one of the largest insurance defense firms in the country where he specialized in health care law and previously served as the judicial law clerk to a judge presiding in the New Jersey State Superior Court.

Mr. Levenson earned his Juris Doctor degree from Albany Law School with honors. While in law school, he served as a Constitutional Law Teaching Fellow and worked at Albany Law School’s Civil Rights and Disabilities Law Clinic, where he dealt with a myriad of health care law issues.

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