By Riëtte van Laack –
Natural claims remain fodder for litigation. Although FDA’s December 2015 request for comments certainly impacted the filing of lawsuits (as discussed in our previous post), new cases continue to be filed, and plaintiffs bring up new arguments against natural claims.
One relatively recent trend sees plaintiffs challenging the presence of trace amounts of an agricultural pesticide in food. In these lawsuits, plaintiffs allege that natural (or 100% natural) claims are false or misleading because the products contain small amounts of glyphosate, a synthetic pesticide. Plaintiffs usually allege that the presence of glyphosate, no matter how small the amount, disqualifies the food from a natural claim.
In 2016, a number of plaintiffs filed lawsuits against General Mills, Inc. for its marketing of Nature Valley Products with the claim “Made with 100% Natural Whole Grain Oats.” Plaintiffs alleged that this claim was misleading, false, and deceptive because Nature Valley Products contain trace amounts of the chemical glyphosate. One such case, consolidating four other cases, was recently before the District Court of Minnesota on a motion to dismiss. The Court dismissed the case because Plaintiffs failed to plausibly allege that the statement “Made with 100% Natural Whole Grain Oats” means, or could be interpreted by a reasonable consumer to mean, that there is no trace glyphosate in Nature Valley Products. The Court concluded that “it is implausible 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.” Plaintiffs could not reasonably apply a higher standard to natural than applies to “organic” claims (organic foods may contain pesticide residues at levels of no more than 5% of the tolerance level.) Moreover, the Court concluded, Defendant “did not represent or warrant that Nature Valley Products would be free from trace glyphosate.”
We will be monitoring further developments in the “natural” litigation landscape to see if the good sense illustrated in this decision proves contagious.
Minnesota District Court: Allegation that 100% Natural Claim Means No Glyphosate is “Simply Not Plausible”
By Riëtte van Laack –