“Contains detectable levels of the weed-killer chemical glyphosate.”
“Contains limonene, which causes kidney toxicity and tumors, and linalool, a cockroach insecticide.”
“Contains a potent biocide and endocrine disruptor, with detrimental health effects that are still becoming known.”
These are the sorts of headline-grabbing allegations the plaintiffs’ bar has recently relied upon in claiming that products advertised or positioned as “natural” are deceptively marketed. At first blush, the presence of allegedly dangerous ingredients in foods, cosmetics, and other consumer products might seem like the basis of a strong false advertising case—especially when those substances are undisclosed. How could a company so deceive the public by promising a “good-for-you” product that contains such “bad” ingredients?
In fact, these sensational allegations are frequently nothing more than sensationalism. The supposedly “harmful” ingredients are almost invariably proven to be safe in the form or concentration present in the product. But allegations like these—irrespective of their scientific merit—still draw eyeballs and can cause manufacturers significant reputational harm.
In a prominent recent example, LaCroix sparkling water was hit with a putative class action alleging that its water, which is marketed as “all natural,” contains cockroach poison and other synthetic chemicals. Immediately, headlines shouted that LaCroix could be poisoning consumers. LaCroix sales plummeted. The company reported net revenues of just $24.8 million in the first quarter of 2019, compared to $41.1 million for the same quarter in 2018. LaCroix’s CEO issued a statement blaming the drop on “injustice”—an apparent reference to the ongoing lawsuit. Indeed, the suit’s merit appears questionable at best: As bloggers at FiveThirtyEight noted, “limonene, linalool propionate and linalool are common plant chemicals” that are naturally “found in many fruits” and give them their characteristic flavor. LaCroix did not move to dismiss the suit, however, and it remains pending.
But last week, the company that makes Rachel Ray’s “Nutrish” dog food was rewarded for taking a stand against a similar challenge at the pleadings stage. It secured dismissal of a putative class action claiming Nutrish is falsely labeled as “natural” because it contains unspecified levels of the “pesticide” glyphosate. Parks v. Ainsworth Pet Nutrition, LLC, Case No. 1:18-cv-06936, 2019 U.S. Dist. LEXIS 68011 (S.D.N.Y. April 18, 2019). According to the complaint, although the product contained only “trace amounts” of glyphosate, its presence at “any level” rendered the “natural” claim untrue. The court disagreed as a matter of law, holding that no reasonable consumer could agree with the plaintiff’s interpretation of “natural” or find the “presence of negligible amounts” of glyphosate to be material. And although the dismissal was without prejudice, the court provided a helpful blueprint for similarly situated defendants to gut these types of challenges at the pleadings stage.
What does a “reasonable consumer” think?
The plaintiff in the Nutrish case alleged that he relied on the representation that the dog food was “natural” when he purchased it, and said he was willing to pay more for it because he expected it to be “free of pesticides and other unnatural chemicals.” Parks, 2019 U.S. Dist. LEXIS 68011, at *2.
Judge Louis L. Stanton of the Southern District of New York found that the plaintiff’s interpretation of “natural” did not align with the objective definition of that term. He noted that the plaintiff asserted that the dog food contained trace amounts of glyphosate, “but not that [it was] composed of unnatural ingredients.” Id. at 10. Moreover, “a reasonable consumer would not be so absolutist as to require that ‘natural’ means there is no glyphosate, even an accidental and innocuous amount, in the Products.” Id. In support of this conclusion, he pointed out that when the FDA established its policy on the term “natural,” it made clear that the policy “was not intended to address food production methods, such as the use of genetic engineering or other forms of genetic modification, the use of pesticides, or the use of specific animal husbandry practices.” Id. (quoting Use of the Term “Natural” in the Labeling of Human Food Products, 80 Fed. Reg. 69,905, at 69,906).
The decision reflects a growing consensus among federal judges that consumers do not and cannot reasonably believe their “natural” products must be utterly devoid of even trace amounts of chemicals that are synthetic or might, in some other context, cause adverse effects. In particular, there has been a considerable amount of litigation around glyphosate. In 2017, a Minnesota federal court dismissed a case alleging that Nature Valley bars were not “100% natural” because they contained traces of the chemical. The court said the plaintiffs’ interpretation of “100% Natural” was unreasonable because it was “nearly impossible” that a product could be made without trace amounts of a synthetic molecule. See In re General Mills Glyphosate Litig., 16 Civ. 2869, 2017 WL 2983877, at *5-6 (D. Minn. July 12, 2017). Last year, another New York federal court dismissed a similar case against Florida’s Natural juice, because, “[g]iven the widespread use of herbicides,” it is “implausible that a reasonable consumer would believe that a product labeled Florida’s Natural could not contain a trace amount of glyphosate that is far below the amount deemed tolerable by the FDA.” Axon v. Citrus World, Inc., 354 F. Supp. 3d 170, 183 (E.D.N.Y. 2018) (quoting General Mills, 2017 WL 2983877, at *5) (internal quotation marks and alterations omitted). These courts found the plaintiffs’ apprehension about potential adverse health consequences particularly ill-founded given that the amount of glyphosate present in the products at issue was below FDA and EPA’s established tolerances for glyphosate.
How much is harmful?
The court in the Nutrish case also considered whether the plaintiff had met his burden of pleading that the product’s labeling “was materially misleading.” Parks, 2019 U.S. Dist. LEXIS 68011 at *11. It held that in the absence of allegations establishing (a) “the amount of glyphosate in the Products” and (b) “whether that amount is harmful or innocuous,” a plausible inference of materiality could not be drawn. Id. at *10.
The court observed that the plaintiff had alleged that “[g]lyphosate has been shown to cause liver disease in rats at levels far lower than is allowed by the EPA, and that the amount of glyphosate in the [dog food] exceeds that low level,” but provided no further information about the level actually present. Id. at *11, n.1 (internal quotation marks omitted). Thus, the court found that the complaint did not allege facts supporting an inference that there was a material amount of glyphosate in the products. Id. at *11. The court explained that “[t]he presence of negligible amounts of glyphosate in a dog food product that do not have harmful, ‘toxic,’ or ‘carcinogenic’ effects is not likely to affect consumers’ decisions in purchasing the product and is thus not material.” Id.
Courts nationwide have dismissed similar challenges premised on the presence of an undesired harmful ingredient that fail to specify the amount actually present in the product and/or the amount that would need to be present to render the product’s labeling statements untrue. Whether analyzed through the rubric of materiality or Rule 9(b)’s requirement that fraud-based claims be pleaded with particularity, court have found that consumers do not state a claim for relief without including this detail.
For example, In 2017, a California federal court dismissed claims based on the alleged presence of excessive added sugar because the plaintiffs did not “allege the amount of added sugar for each product and that the specific amount of added sugar for each product is unhealthy.” Hadley v. Kellogg Sales Co., 243 F. Supp. 3d 1074, 1092 (N.D. Cal. 2017). Another complaint in California federal court was dismissed “because it [did] not allege a level of hexavalent chromium”—an allegedly dangerous chemical—“in [a dietary supplement] that materially changes its safety profile from safe to unsafe.” Arroyo v. Chattem, Inc., 926 F. Supp. 2d 1070, 1079 (N.D. Cal. 2012). And a New Jersey federal court dismissed a case alleging that L’Oreal’s lipstick contained lead because plaintiffs had “provided no authoritative evidence that the lead levels in Defendants’ lipstick products constitute a dangerous amount or is [sic] in some way prohibited.” Koronthaly v. L’Oreal USA, Inc., 2008 U.S. Dist. LEXIS 86419, at *11 (D.N.J. Oct. 23, 2008), aff’d, 374 F. App’x 257 (3rd Cir. 2010).
Plaintiffs’ lawyers show no signs of abandoning sensationalistic false advertising suits based on allegedly harmful ingredients, believing the optics of their allegations—no matter how far-fetched—can be sufficiently damaging to force manufacturers to settle. As some have suggested, it may be just a matter of time before we see a class-action complaint attacking a product for containing “dihydrogen monoxide—a substance that’s a major component of acid rain, that is known to corrode and oxidize metals and that can be fatal if inhaled.” (That deadly chemical is also called water.) But courts have not been particularly receptive to such pseudoscientific grandstanding. For defendants hit with these “harmful ingredient” suits, taking an aggressive posture and moving to dismiss could prove worthwhile.