Trace Amounts Of Herbicide Don’t Belie Natural Claims

In Absence of FDA Guidance, Court Applies Organic Standard to Natural Claims

In re General Mills Glyphosate Litigation
Dismissed – General Mills allegedly marketed its Nature Valley products as “made with 100% Natural Whole Grain Oats” despite the fact they contained Glyphosate (trade name ‘Roundup’), a synthetic herbicide and desiccant. Plaintiffs alleged neither product packaging nor the Nature Valley website disclose the presence of Glyphosate. Plaintiffs claimed they would not have purchased Nature Valley products had they known about the Glyphosate.

The court ruled plaintiffs had standing since they sufficiently alleged all products contained Glyphosate. However, plaintiffs only had standing for categories of products they had actually purchased, and not the entire line of Nature Valley oat products. The court also found plaintiffs had standing to bring injunctive relief, since plaintiffs stated they would buy Glyphosate-free Nature Valley products. Thus, a threat of injury existed, as plaintiffs would have no way of knowing if future labels were accurate absent an injunction.

However, the court felt a reasonable consumer would accept that a product “Made with 100% Natural Whole Grain Oats” could contain a trace amount of Glyphosate. At 0.45 parts per million, the Glyphosate residue content of Nature Valley products was “far below the amount permitted for organic products under federal law.” As the case concerned the amount of herbicide present, organic standards could be applied to the natural claims.

Accordingly, General Mills claims did not constitute a representation (or warranty) that Nature Valley products were Glyphosate-free, and plaintiffs’ claims were dismissed with prejudice.
[D. MN; 0:16-cv-02869]
jbho: another case that deals with the ambiguity around ‘natural,’ and emphasizes the need for the FDA to pick up the pace in issuing guidance. Until they do, plaintiff’s bar will likely continue to test these waters.

The only guidance from the FDA I’ve seen on the term ‘natural,’ is that products should not contain artificial flavor, artificial colors, chemical preservatives, or any other artificial or synthetic ingredient, and products should only be ‘minimally processed.’

The USDA is updating its own ‘natural’ guidelines, but they have not yet been open to public comment. Although, here the court simply applied USDA organic labelling requirements. Under federal regulations, foods labelled organic are allowed to contain chemical residues, so long as the residue is less than 5 percent of EPA tolerance for the substance.

Also worth noting, recent FTC enforcement has focused less on ‘natural,’ but more on the ‘100%’ claim as misleading.  As always, be careful when using absolutes in advertising.

 

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