A federal court in New York has dismissed an amended complaint filed against high-fructose corn syrup (HFCS) manufacturers, alleging that the HFCS in foods and beverages, such as McDonald’s hamburger buns and Pepsi, was a substantial factor in causing a 14-year-old girl to develop Type 2 diabetes. S.F. v. Archer-Daniels-Midland Co., No. 13-634, decided April 21, 2014). The plaintiff alleged market-share liability under the tort doctrines of strict liability, negligence and failure to warn.
The court agreed with the defendants that Type 2 diabetes is a multifactorial disease, stating “[n]o expert opinion is required to arrive at this conclusion.” And even accepting the allegations as true, the court said, “[T]here is little in it to suggest that Plaintiff could prove that her consumption of some foods containing HFCs over the course of her life was a substantial factor in causing Type 2 diabetes. . . . [A]side from idly listing various common foods she has eaten, Plaintiff offers limited facts that might lead this Court to believe that she could ultimately show that it was her consumption of these foods, and specifically the HFCs found within these foods (manufactured by these defendants) that led to her disease.”
While the court found it may be “possible” to establish proximate cause, it asked whether this is “plausible” under Pelman ex rel. Pelman v. McDonald’s Corp., No. 02 CIV. 7821 (RWs), 2003 WL 22052778 (s.D.N.Y. sept. 3, 2003), rev’d, 396 F.3d 508 (2d Cir. 2005)—the court questioned the continuing viability of the second Circuit’s ruling because it was decided before Twombly and Iqbal—and decisions establishing the “plausibility pleading” standard.
Assuming that she could surpass this hurdle, the court ruled that market- share liability does not apply because a number of key factors are absent, i.e., “there is no claim that the ‘manifestations of injury were far removed from the time of ingestion of the product’ and certainly there has been no legislation suggesting an overriding public interest in allowing claims like this to proceed in this manner.”The court also found no “signature injury” related to HFCS or that the HFCS manufacturers exercised exclusive control over the ingredient. Regarding the latter, the court stated, “There is no dispute that the makers of end-products—not the defendants—decide ‘what quantities’ of HFCS to use, just as the manufacturers of the paint—and not the manufacturers of the lead—decide how much lead to use.”
The court further noted that liability must be premised on an allegation that the product is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” In the court’s view, “[i]f there is no difference between HFCS and simple fructose, HFCS can hardly be said to be unreasonably dangerous.”
In this regard, the court found that the complaint must be dismissed because the plaintiff failed to plead that HFCS is unreasonably dangerous. She alleged that the high concentration of HFCS was the source of her illness and alleged that HFCS is “more dangerous than sugar because of the way fructose is processed in the body. But,” the court said, “fructose is a naturally occurring compound, found in everyday, commonly consumed fruits like grapes and pears. Certainly Plaintiff is not suggesting that these fruits are ‘toxic’ substances. Yet this is precisely what Plaintiff appears to suggest: she does not distinguish between fructose found in fruit and fructose found in HFCS; rather, she alleges that '[f]ructose’—not high-fructose corn syrup—‘is a major cause of metabolic syndrome and type 2 diabetes.’”The court found particularly relevant to this point that the defendants “do not control how much HFCs is used in the finished products that Plaintiff consumed.”
The court found a third reason to dismiss the complaint—the plaintiff’s failure to plead defective design under New York law. According to the court, “she does not attempt to allege how HFCS could be made safer. . . Instead she argues that all HFCS—even those formulations with a lower fructose-to- glucose ratio than sugar—is unsafe, regardless of its composition.” Not only did this allegation contradict the plaintiff’s earlier claim that HFCS is more dangerous than sugar because of its elevated levels of fructose, the court also said that if she were to succeed by imposing state law tort liability on the manufacture and sale of HFCS now on the market, this would virtually ban the ingredient. “Thus, if the only alternative is an outright ban, no design-defect claim will stand.”