August 31, 2017 Practice Points

Update to In re: General Mills Glyphosate Litigation

By Paul V. Majkowski

We update our prior piece, Glyphosate and the Many Ramifications of an IARC Classification, to report on new decisions in consumer cases based on the theory that the labeling of certain food products as “natural” is improper where glyphosate is allegedly present.

In In re: General Mills Glyphosate Litig., Civ. No. 16-2869 (D. Minn. July 12, 2017), the district court dismissed the allegations that the defendant’s labeling of its products as “Made with 100% Natural Whole Grain Oats” was misleading and false due to the presence of trace amounts of glyphosate (reportedly 0.45 parts per million) on Iqbal plausibility grounds. The court concluded that the labelling could not be “interpreted by a reasonable consumer to mean that there is no trace glyphosate in Nature Valley Products” or “that a reasonable consumer would believe that a product labelled as having one ingredient—oats—that is “100% Natural” could not contain a trace amount of glyphosate that is far below the amount permitted for organic products.” Id. at 14–15.

Notably, by focusing its analysis on the rules governing “organic” products, the court avoided some of the uncertainty of what constitutes a “natural” product, for which the FDA has not yet finalized its rules.

Here, the Products satisfy the federal standard for organic labelling with regard to the small amount of glyphosate found in the Products. Thus, it is not plausible that a product can satisfy the organic standard for biocides yet its label can be deemed be false for stating that it is natural because it contains trace amount of biocides. Satisfaction of the organic standard might not be relevant for other types of “natural” claims. However, organic labelling rules are aimed at the exact issue in this case—the amount of pesticides and biocides applied to crops and found in products.

Id. at 16–18 (emphasis added).

The plaintiffs’ theory seems almost like a variation on the “single molecule” theme. While not necessarily examining the science, the General Mills court did at least somewhat implicitly rely on the basic toxicological principle that “the poison is the dose” in finding it implausible that a level of exposure so low as not to disallow a product’s classification as “organic” could be reasonably construed to negate the product’s “natural” character.

In contrast, a similar complaint filed in the District of Columbia Superior Court survived an initial plausibility challenge. Organic Consumers Ass’n v. General Mills, Inc., No. 2016 CA 6309B (D.C. Super. Ct. July 6, 2017). The court concluded:

Plaintiffs, by contrast, allege specifically and plausibly that the precise wording Defendant uses on its product labels misleads consumers—i.e., that Defendant’s products contain traces of a chemical agent while representing to be made from 100% natural whole grain oats, and that Defendant thus misleads consumers seeking to purchase and consume “natural” foods. . . . [P]lainly, a reasonable fact-finder considering the facts as alleged could conclude that consumers have been misled in violation of the CPPA.

Id. at 18.

Whether these claims are preempted also presents a split. In Gibson v. Quaker Oats Co., No. 1:16-cv-04853 (N.D. Ill. Aug. 14, 2017), the federal district court dismissed on preemption grounds, finding that federal law occupied the field of food labeling, for example, based on the Food, Drug, and Cosmetic Act’s “express language establishing a clear and manifest purpose to prohibit states from imposing food labeling requirements on manufacturers.” Id. at 7. But, the D.C. Superior Court declined to grant dismissal on either preemption or primary jurisdiction grounds, reasoning, “Plaintiffs do not bring claims alleging violations of FDA regulations; they bring claims alleging violations of the CPPA. The question whether Defendant, by its labeling practices, represented that its products have ‘characteristics [or] ingredients . . . that they do not have,’ D.C. Code § 28-3904(a), will not turn on whether the presence of glyphosate renders a product ‘unnatural’ under FDA guidelines.” Organic Consumers Ass’n, at 16.

While we might be inclined to give the federal courts’ analyses more weight, the difference of opinion does reflect the closeness of these issues and arguments, which bear further watching. (We note that the General Mills plaintiffs have filed a notice of appeal to the Eighth Circuit.)

Paul V. Majkowski is a partner with Rivkin Radler LLP in New York City, New York.

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