Misleading “natural” product packaging at heart of dismissed multistate claims
Glyphosate is one of the most common herbicides in the world, useful for killing the weeds that stifle crops. First formulated in the 1950s by a Swiss scientist, the chemical had become the No. 1 herbicide in the United States agricultural sector, and the second-most used in homes and gardens by 2007. Experts have described glyphosate as “a one in a 100-year discovery that is as important for reliable global food production as penicillin is for battling disease.”
Brought to a Boil
The herbicide was front and center in Kathleen Gibson’s class action lawsuit against Quaker Oats, filed in the Northern District of Illinois, Eastern Division, in May 2016. Ms. Gibson took exception with Quaker Oats’ claim that its products were “natural,” “100 percent natural” and “heart healthy,” among other such claims, given that traces of glyphosate were found after testing certain Quaker Oats products.
Given glyphosate’s ubiquity, it is no surprise that it touches the production life of many different food products. The producers of the oats that find their way into Quaker products use the herbicide while their harvest is in the ground, to aid in the drying of the oats and to produce an earlier and more uniform crop.
Gibson’s suit alleged that the presence of the glyphosate, while not unlawful in its own right, undermined Quaker’s “Green and environmentally conscious” brand and proved that its advertising was intended to mislead. She brought claims alleging negligent misrepresentation; unjust enrichment; and violation of the Illinois Food, Drug and Cosmetic Act and the Consumer Fraud and Deceptive Business Practices Act, among others.
The court granted Quaker Oats’ motion to dismiss in August. While observing that the consolidated class was bringing a dozen different claims with a similar theme under Illinois, California, Florida, New York and common law, the court noted that the labeling of food is governed by the Federal Food, Drug and Cosmetic Act, and not by individual states. The court posed the question: Did Congress intend to pre-empt the field of nutritional and food labeling in this case?
The court ruled that it did, and that the state claims brought by the class could not survive: The Food and Drug Administration’s guidance on the term “natural” did not encompass food production methods, effectively removing the use of herbicides before processing as a basis for possible claims. It also noted that the use of the word “natural” did not imply a nutrition or health benefit.