The recent $289 million verdict in Johnson v. Monsanto in the Northern District of California and last week’s report from the Environmental Working Group (EWG) about glyphosate residues in oat-based products have prompted a media storm over potential health risks associated with glyphosate. And as is usually the case when a public health scare erupts, the plaintiffs’ class action bar will be looking to capitalize on public fears. Of course, from a scientific standpoint, nothing has changed, but the publicity about glyphosate, itself, may present business risks for companies of all stripes. Glyphosate will most obviously generate litigation risks for food and beverage companies, but it may also create risks for the manufacturers, distributors, and retailers of products made with other plant-based agricultural commodities, including textiles and personal care products.

Background on Glyphosate Litigation

In Johnson v. Monsanto, a jury returned an award of $289 million in favor of a groundskeeper who contended that the herbicide Roundup,® a commonly used weed killer, caused his terminal cancer. Monsanto currently faces several thousand lawsuits alleging personal injuries from exposure to glyphosate. Many of these cases are currently pending in a Multi-District Litigation proceeding in the Northern District of California. Other cases are pending in state courts around the country, most notably in Missouri, the same jurisdiction that has recently handed down a multi-billion dollar verdict against Johnson & Johnson in connection with exposure to talcum products.

Glyphosate has also become an issue in false advertising class action litigation, especially in connection with products labeled as “natural.” See, e.g., Scholder v. Riviana Foods, Inc., 2017 U.S. Dist. LEXIS 98330 (S.D.N.Y. June 23, 2017); In re Gen. Mills Glyphosate Litig., 2017 U.S. Dist. LEXIS 108469 (D.Minn. July 12, 2017); Gibson v. Quaker Oats Co., 2017 WL 3508724 (N.D.Ill. Aug. 14, 2017), appeal dismissed, 2017 WL 8219421 (7th Cir. Dec. 7, 2017); Tran v. Sioux Honey Assoc. Cooperative, 2017 WL 5587276 (C.D.Cal. Oct. 11, 2017). Several of these actions have been stayed, pending clarification from the FDA on permissible uses of “natural” in food labeling or glyphosate’s toxicity and labeling requirements. Others have been dismissed for failure to state a claim because the trace chemical was present in such a small amount as to comply with the federal organic standard, and therefore unlikely to deceive reasonable consumers. Recently, several courts have lifted or denied stays, as guidance from the FDA has not been forthcoming. See, e.g., Tran v. Sioux Honey Assoc. Cooperative, Case No. 17-cv-00110 (C.D.Cal. April 16, 2018) (Court Order Lifting Stay, ECF No. 56) (lifting six-month stay after FDA declined to determine whether and in what circumstances honey containing glyphosate may or may not be labeled “pure” or “100% Pure”).

Litigation Anticipated to Arise From Recent Media Focus

In our view, it is unlikely that food companies or retailers will face any significant risk of personal injury or product liability actions related to glyphosate. From a scientific standpoint, there are many reasons to believe that glyphosate does not pose cancer risks, and the chance that prospective plaintiffs could tie an illness to a specific food exposure seems very remote, even in plaintiff-friendly jurisdictions like St. Louis and the Northern District of California.

That said, we do expect to see more filings in certain areas.

First, food manufacturers and retailers selling products labelled as “natural,” “healthy,” and “wholesome,” could see an increase in false advertising cases brought under state consumer fraud laws, especially in key class action jurisdictions such as California, New York, Illinois, Florida, and Massachusetts. These types of cases usually allege that consumers paid a premium for products that promise health benefits and that the presence of glyphosate renders those representations false. Plaintiffs usually argue they either would not have purchased the products, or paid as much for them, if they had known of the presence of glyphosate. Plaintiffs usually seek refunds of some or all of their purchase price. One such case was recently filed in New York challenging the “natural” claims of a popular brand of dog food, which allegedly contained glyphosate. These cases typically flounder on plaintiffs’ inability to prove that class members have a common understanding about the advertising term, the relevance of the omitted information, and the lack of an economically defensible damage model.

Second, we may see a spike in “no injury product liability” class actions. These actions are similar to false advertising cases, in that consumers claim they did not know of the alleged health risk and would not have bought the product if they had. Unlike the false advertising cases, however, plaintiffs in these cases cannot point to a specific affirmative representation by the defendant that is “false” because the product contains glyphosate. Plaintiffs will have used the product, obtained its benefits, and merely seek refunds based on the fact it exposed them to some kind of health effect which did not materialize. In our experience, it is common to obtain dismissals of such cases at the pleading stage based on the lack of Article III standing or any legally cognizable damage.

Third, manufacturers and retailers could see cases seeking injunctive relief, requiring labeling disclosures, and/or the withdrawal of products that contain levels of glyphosate that they contend pose an unreasonable health risk. Such claims are often subject to defenses based on preemption and the primary jurisdiction doctrine. The FDA has primary, if not exclusive, discretion to order the recall of products that are adulterated or misbranded.

Finally, glyphosate has recently been listed under California’s Proposition 65 as a chemical “known to the state of California” to cause cancer. In February, 2018, a federal court in California enjoined enforcement of Proposition 65 as to glyphosate, and in June it denied a motion to alter or amend the judgment. The decision rested on First Amendment principles, specifically that a warning about glyphosate and cancer would be a form of unconstitutional “compelled speech.” The California Attorney General has since sought a stay of Prop 65 litigation relating to glyphosate, pending various appellate rulings.

What to Do

Now is a good time to consider whether this heightened scrutiny of glyphosate has any potential implications for your company’s business. It seems likely that groups such as EWG will do what they can to keep glyphosate in the headlines and will look for ways to call public attention to the presence of glyphosate in foods and other common consumer products. If you have not already done so, it may be prudent to consider testing products to look for the presence of glyphosate under the guidance of counsel. This may help inform whether your company can and should take steps to mitigate any litigation and business risks posed by glyphosate residues.