Glyphosate litigation continues to grow apace. In addition to the massive numbers of personal injury cases based on exposure to the popular herbicide, on which we have reported previously, the plaintiffs have begun to file cases alleging deceptive trade practices against companies that market food products containing trace amounts of glyphosate with labels like “Natural” or “Pure”.
One such case was brought in federal court in New York against Florida’s Natural Growers, Inc. and its parent company, Citrus World, Inc., makers of Florida’s Natural orange juice. The plaintiff, who claimed to represent a nationwide class of purchasers, alleged that Florida’s Natural violated New York’s consumer protection statute by using the word “Natural” in its brand name even though its orange juice contains trace amounts of glyphosate (specifically, 5.11 nanograms per milliliter). Glyphosate, the plaintiff alleged, is not a “natural” ingredient.
Florida’s Natural moved to dismiss, arguing that the plaintiff had no standing to sue, that federal law preempted New York’s consumer protection statute with regard to labeling of orange juice, and that in any case its products do not violate the New York statute because a reasonable consumer would not be misled into believing that Florida’s Natural’s products contains no traces of glyphosate. The court disagreed with Florida’s Natural as to standing and preemption, holding that the plaintiff had standing and that federal law did not have anything to say as to when the term “natural” may be used—only when it may not. However, the court agreed that it was not plausible to allege that a reasonable consumer would interpret the brand label “Florida’s Natural” as meaning that the product contained no traces of glyphosate. As a result, the court dismissed the plaintiff’s claims.
As novel as the plaintiff’s theory may seem, this was not a unique case. In another case this year, a court allowed a consumer protection claim to proceed to trial where a product containing trace amounts of glyphosate was labeled “100% pure”. Another decision last year allowed a similar claim to go forward where the defendant’s product was labeled “100% Natural Whole Grain Oats”. Unlike the defendants in those cases, Florida’s Natural was able to escape litigation at an early stage because it did not make a specific claim about the product. The term “Natural” appeared only in the brand name.
As these cases demonstrate, efforts to capitalize on recent reports suggesting that glyphosate may be harmful to humans will take a number of forms. In particular, the cases show that the danger of glyphosate litigation extends beyond companies like Monsanto that manufacture glyphosate-based herbicides. Any company whose products have been touched by the world’s most popular herbicide will need to consider how they might be drawn into lawsuits, how they can avoid that fate, and how to deal with lawsuits should they arise.
The case is Axon v. Citrus World, Inc., No. 18-cv-4162 (ARR) (RML), 2018 WL 6448648 (E.D.N.Y. December 10, 2018).