Pesticide suits may not have the staying power many in the food world feared, after all. Following news of the first billion-dollar verdict against the manufacturer of Roundup®, food and beverage companies braced as a series of suits targeted products allegedly containing trace residues of glyphosate (the active ingredient in Roundup) and other pesticides. Recent decisions dismissing pesticide suits, however, may provide a roadmap for manufacturers seeking to defeat these cases at the motion-to-dismiss stage. Similarly, while at least one glyphosate complaint has survived a motion to dismiss, the critical eye shown by courts to these claims may change manufacturers’ risk assessments.

In Yu v. Dr. Pepper Snapple Group, Inc., the plaintiff alleged that the defendant’s Mott’s apple sauces and juices were deceptively labeled “Natural” and “All Natural Ingredients,” despite the presence of insecticides and other “unnatural chemicals.” Specifically, the plaintiff alleged that the products contained trace amounts of acetamiprid, a synthetic insecticide used in harvesting crops. The plaintiff did not allege that the amount of acetamiprid exceeded the federal standard; rather, he alleged consumers would not expect products labeled and marketed as “natural” to contain insecticides at all.

In granting Dr. Pepper’s motion to dismiss, the Northern District of California held that the plaintiff’s claims were implausible. Specifically, the court held that the plaintiff failed to plead facts suggesting that a reasonable consumer would understand “natural” to mean the complete absence of insecticides, especially when present “on the order of 0.02 and 0.06 parts per million” as alleged in the complaint. Having dismissed the plaintiff’s claims with leave to amend, the court then stayed the litigation through February 2020 pending the Food and Drug Administration’s rulemaking on “natural.”

The week before the Yu decision, the Southern District of Florida dismissed a similar suit concerning the alleged presence of glyphosate in Cheerios®. In Doss v. General Mills, Inc., the plaintiff alleged that General Mills failed to disclose the presence of glyphosate in several of its Cheerios® cereals. Specifically, the plaintiff alleged that glyphosate, the active ingredient in the weed killer Roundup, which is also used as a desiccant in harvesting oats, was present in a range between 470 and 1,125 parts per billion and that even “ultra-low levels of glyphosate may be harmful to human health.”

In dismissing the complaint, the court first held that the plaintiff lacked standing because she failed to allege any of the Cheerios® products she actually purchased contained glyphosate. Instead, Doss merely alleged that her purchases may have contained the herbicide. The court further held that Doss failed to state a claim because she failed to allege she did not receive the product she purchased given that General Mills never claimed the cereal did not contain trace amounts of glyphosate. Finally, the court held that the plaintiff failed to identify any legal obligation requiring the manufacturer to disclose the presence of any trace amounts of glyphosate in the cereal.

But perhaps the strongest dismissal of a pesticide suit came earlier this year from the Southern District of New York. In Parks v. Ainsworth Pet Nutrition, LLC, the plaintiff alleged that the defendant’s Rachel Ray Nutrish® dog foods were deceptively labeled and marketed as “natural” despite the presence of glyphosate. In dismissing the complaint, the court began by holding that Parks failed to allege the amount of glyphosate actually in the dog foods or whether that amount was “harmful or innocuous.” More pointedly, though, the court held that “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.” As a result, the court held that “[t]he presence of negligible amounts of glyphosate in a dog food 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.”

However, at least one state court has allowed a pesticide suit to proceed past the motion-to-dismiss stage. In Organic Consumers Association v. Pret a Manger (USA) Ltd., the plaintiff consumer group sued Pret a Manger®, alleging that the restaurant chain falsely advertised its “Natural Food” despite the alleged presence of glyphosate. In its motion to dismiss, Pret a Manger® alleged that because trace amounts of glyphosate are allowed in certified “organic” foods, consumers would not interpret “natural” to be more restrictive. However, the D.C. Superior Court disagreed, holding it at least plausible that consumers would interpret “natural” to mean the complete absence of “an artificial chemical agent.” In denying the motion to dismiss, the court specifically noted that whether the group’s claims were “meritorious [was] not at issue at this juncture.”

Perhaps emboldened by its success in the Pret a Manger case, the Organic Consumers Association recently filed a similar action in D.C. Superior Court targeting Twinings’® labeling and marketing of its tea products as “pure” and containing “100% natural ingredients” despite allegedly containing trace amounts of glyphosate.

While hardly conclusive, these early results suggest that courts may not be as receptive to pesticide suits against food manufacturers as either manufacturers feared or plaintiffs and their attorneys hoped. Both the Yu and Parks courts held it implausible that reasonable consumers would expect the complete absence of pesticides in their food, even at innocuous or accidental levels. And while the Doss court did not go as far, its more stringent pleading standard for the plaintiff’s claims certainly followed the same logic.

While the D.C. Superior Court refused to take such a skeptical view, its reasoning may end up limited to that jurisdiction alone. As more courts rule on food and beverage pesticide claims, time will tell whether those courts follow the Yu, Doss and Parks courts’ more demanding standard or instead follow the D.C. Superior Court’s more permissive one. Finally, as the Yu court discussed in staying the case, the FDA’s long-awaited guidance on “natural” will likely govern whether pesticide claims succeed in the long term. However, for the time being, manufacturers may be able to reassess their potential exposure to pesticide claims and may need to prepare for more pesticide claims being filed in D.C. courts.