Quaker Oats targeted in ‘100% natural’ lawsuit over glyphosate; but case ‘is a stretch’ for plaintiff’s bar, say attorneys

The lawsuits* - filed in New York and California on April 29 – acknowledge that the trace levels of glyphosate in selected Quaker Oats products** (1.18 parts per million) are significantly below the Environmental Protection Agency's legally permitted threshold of 30ppm​ ​for cereal grains, but argue that reasonable consumers would not expect to see glyphosate residues at any level​ in oats labeled as ‘100% natural’.

In the case filed in the Northern District of California (Cooper v The Quaker Oats Company 3:16-cv-02364), the plaintiff argues: “Quaker Oats are not ‘100% Natural,’ but instead contain the chemical glyphosate, a potent herbicide that last year was declared a probable human carcinogen by the cancer research arm of the World Health Organization (WHO)… ​

"When a product purports to be ‘100% Natural’ consumers not only are willing to pay more for the product, they expect it to be pesticide-free.”​

This is a not a case about money ​

It goes on to cite a 2014 phone survey​​ by Consumer Reports showing that 66% of the 1,004 consumers polled believed that a ‘natural’ label on packaged and processed foods meant that ‘no toxic pesticides were used’ and that 86% believed that a ‘natural’ label on packaged and processed foods should​ mean that ‘no toxic pesticides were used.’

Kim Richman at the Richman Law Group in Brooklyn, which is one of the law firms representing the plaintiffs, added: “This is a not a case about money. This is a case about a trusted American brand luring customers with representations of a ‘100% Natural’ product that actually contains a dangerous biocide.”​

"The case is a sham. Among other things, whether any ingredient is dangerous is all about the ‘dosing' – anything can be deadly (including water) if the dose is too high. There is nothing dangerous about the products here based on plaintiff’s own allegations.” ​

Dale J. Giali, partne, Mayer Brown ​

No reasonable consumer would understand such products to be entirely devoid of trace amounts of pesticides ​

Defense attorneys contacted by FoodNavigator-USA for comment, however, predicted that the plaintiffs could face an uphill battle.

For a start, Quaker will likely argue that the cases should immediately be stayed or dismissed on primary jurisdiction grounds as the FDA is currently conducting a probe into ‘natural’ claims, they observed (several recent ‘natural’ cases have recently been put on ice on these grounds​​).

But Quaker (owned by PepsiCo) will not simply rely on this argument, predicted David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP.

“I suspect… that it will first assert one or more arguments for outright dismissal of the matter based on preemption and/or the complete failure to allege a claim, because as a matter of law no reasonable consumer would understand such products to be entirely devoid of trace amounts of pesticides where such levels are well below legally permitted thresholds.”​

A 2015 statement from the International Agency for Research on Cancer​​ (part of the World Health Organization) that glyphosate was ‘probably carcinogenic to humans’ had given ammo to plaintiff’s attorneys going after Monsanto (which makes glyphosate/RoundUp), as well as food companies utilizing ingredients from crops sprayed with the herbicide, he added.

“It is therefore not surprising to see this lawsuit, which tries to combine the new fears about glyphosate with a more traditional ‘All Natural’ lawsuit. ​[However], my first impression is that plaintiffs might have an uphill struggle to state a cause of action given the trace amounts of glyphosate that exist.  The product is not organic, so trace amounts should not be unexpected.”​

“This is a not a case about money. This is a case about a trusted American brand luring customers with representations of a ‘100% Natural’ product that actually contains a dangerous biocide.” ​

Kim Richman, Richman Law Group  ​

The case is a sham: The dose makes the poison​

Dale J. Giali, a partner at Mayer Brown added: “The case is a sham. Among other things, whether any ingredient is dangerous is all about the ‘dosing” – anything can be deadly (including water) if the dose is too high. There is nothing dangerous about the products here based on plaintiff’s own allegations.”​

Meanwhile Bruce Silverglade, principal at Olsson Frank Weeda Terman Matz PC, noted: “The Plaintiff’s class action bar has picked most of the low hanging fruit on All Natural claims for products made with artificial ingredients and is now looking for excuses to bring new litigation. [But] this case is a stretch to say the least.”​

However, Ivan Wasserman, a partner at Manatt, Phelps & Phillips, LLP, noted that there have been other cases homing in on pesticide residues and 'natural' claims, notably against Hain Celestial​​ over its herbals teas (although the suit v Hain alleged that the pesticide residues in selected Sleepytime teas exceeded​ legal thresholds).

Glyphosate and safety​

In March 2015, the IARC said issed a report​​ concluding that glyphosate (plus the insecticides malathion and diazino) was “probably carcinogenic to humans”.​ It did not conduct any new research, but said it had reviewed “studies of exposures, mostly agricultural, in the USA, Canada, and Sweden published since 2001​”, adding that there was also “convincing evidence that glyphosate also can cause cancer in laboratory animals”.​

However, Monsanto, which developed glyphosate (‘RoundUp’), said it was baffled ​by the IARC’s statement as “there is no new research or data that was used; the most relevant, scientific data was excluded from review; the conclusion is not supported by scientific data; and there is no lik between glyphosate and an increase in cancer when the full data set is included in a rigorous review”.​

It also noted that the IARC's findings were inconsistent with those of two other WHO programs – the Core Assessment Group and the International Program on Chemical Safety – which have both concluded glyphosate is not​ carcinogenic.

There was also confusing news on glyphosate yesterday, with the EPA publishing its official classification of glyphosate as 'Not Likely to be Carcinogenic to Humans​'​ and then withdrawing​​ it, with an agency spokesman telling Politico that "the review of glyphosate isn't ready,​" but adding: "Our assessment will be peer reviewed and completed by end of 2016." ​

Quaker Oats: You'd have to eat 1,000 bowls a day to come close to threshold set by gov't​

Quaker Oats told FoodNavigator-USA that "glyphosate is commonly used by farmers across the industry who apply it pre-harvest" ​​and is "also found in other grains in trace amounts including rice and wheat."​​

However, any traces that might remain after the oats are cleaned post harvest were "significantly below any limits which have been set by the EPA as safe for human consumption,"​ added the company.

"It’s important to put this into perspective. The typical consumer would, on average, have to consume approximately 1000 bowls of oatmeal a day to even come close the safe limit set by the US government."​

*​The cases are Danielle Cooper et al v The Quaker Oats Company, ​Case 3:16-cv-02364 filed in California; and Lewis Daly v The Quaker Oats Company, Case 1:16-cv-02155 filed in New York, on April 29.

**The products cited in the lawsuits are Quaker Oats Old-Fashioned, Quaker Oats Quick 1-Minute, and Quaker Steel Cut Oats Sweet Almond Mint.

Click HERE​​ to read what food and beverage CEOs think 'natural' means.

Click HERE​​ to read some of the comments submitted to the FDA as part of its probe into ‘natural’ claims (the comment period closes on May 10).