Dioxin in the Courts

May 23, 2016 | Commercial Litigation | Complex Torts & Product Liability

Glyphosate Makes Quaker Oats’ “100% Natural” Claims False, Proposed Class Actions Assert

Proposed consumer protection class action lawsuits filed in federal courts in New York and California against The Quaker Oats Company contend that its oatmeal products are not “100% Natural” and that its oats are not grown using “eco-friendly” methods that pose “less risk of pollutants and groundwater pollution,” as advertised, because “they contain the chemical glyphosate, a potent herbicide.” The lawsuits assert, therefore, that Quaker Oats’ advertising claims are “false, deceptive, and misleading.”

General Allegations

The lawsuits contend that glyphosate is in Quaker Oats’ products because it is sprayed on the oats as a drying agent shortly before harvest. The complaints observe that there is “nothing unlawful about Quaker Oats’ growing and processing methods.” Instead, they assert that Quaker Oats is claiming that Quaker Oats “is something that it is not in order to capitalize on growing consumer demand for healthful, natural products.”

In particular, the complaints assert that Quaker Oats “falsely and deceptively” labels and markets certain of its products – in particular, Quaker Oats Old-Fashioned, Quaker Oats Quick 1-Minute, and Quaker Steel Cut Oats – as “Natural,” “100% Natural,” “100% Natural Whole Grain,” and “Heart Healthy” or “part of a heart healthy diet” when they contain “something other than whole, rolled oats.” The complaints assert that the products “contain glyphosate,” which they characterize as not “Natural” or “100% Natural” but, rather, as “a potent and unnatural biocide.”

The complaints contend that glyphosate “is a synthetic herbicide and probable human carcinogen, with additional health dangers rapidly becoming known.” They acknowledge that glyphosate is “legal” in connection with food products and that the law does not preclude the use of glyphosate in treating and harvesting crops. The complaints point out, however, that Quaker Oats’ is not claiming that Quaker Oats are “legal,” but that they are “Natural” and contain “100% Natural Whole Grain” and nothing else when, according to the complaints, they contain glyphostate.

The Glyphosate Allegations

The complaints contend that “quantitative testing” revealed that Quaker Oats contain glyphosate. They assert that glyphosate, “the world’s most widely produced herbicide,” is “a probable human carcinogen” and that, as a result, Quaker Oats “are not ‘Healthy’ or ‘Heart-Healthy.’” Moreover, according to the complaints, Quaker had “a duty to disclose the presence of glyphosate and to warn of the dangers associated with glyphosate.”

The complaints cite the International Agency for Research on Cancer (“IARC”) declaration of glyphosate as a “probable” human carcinogen and assert that it can “cause liver and kidney damage.” Thus, the complaints assert, Quaker Oats “are not what a reasonable consumer would consider ‘Natural’ or ‘100% Natural,’ because in fact they contain glyphosate.”

The plaintiffs, who are demanding trial by jury, seek refunds for purchasers as well as a “corrective advertising campaign to inform the public of the true nature of Quaker’s carcinogen-contaminated oats.” They contend that the value of the relief they are seeking exceeds $5 million.

Quaker Oats’ Response

In response to the lawsuits, Quaker Oats issued a statement saying, among other things, that it did not add glyphosate during the milling process, that farmers might apply it to certain grains before harvest, that its oats undergo a cleansing process, and that, “[a]ny levels of glyphosate that may remain are trace amounts and significantly below any limits which have been set by the [U.S. Environmental Protection Agency (“EPA”)] as safe for human consumption.”

Conclusion

The complaints raise a number of important issues. To what extent can a company with a lawful growing or processing method still be subject to liability? Is there a level of disclosure that may be required concerning growing and processing methods? Can liability be imposed on Quaker Oats if the level of glyphosate is lower than EPA limits? Are the complaints affected by the new regulations issued under the Food Safety Modernization Act (“FSMA”)? Will the Food & Drug Administration weigh in on the meaning of “natural”?

We will continue to monitor these lawsuits and report on developments as warranted.

Learn more:

“Study Finds Glyphosate Is Most Used Pesticide in the United States,” at http://www.rivkinradler.com/publications/the-science-of-dioxin-7/;

“Monsanto Sues California to Prevent Listing of Glyphosate Under California’s Prop 65,” at http://www.rivkinradler.com/publications/dioxin-in-the-courts-4-2/;

“EFSA Concludes that Glyphosate Is ’Unlikely to Pose a Carcinogenic Hazard to Humans,’” at http://www.rivkinradler.com/publications/dioxin-developments-8/;

“Monsanto Empanels Group to Review IARC Classification of Glyphosate,” at http://www.rivkinradler.com/publications/international-dioxin-developments-3/.

 

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