ADventures in Law

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Can you call your processed food product “natural” or “pure” when it contains a residual amount of an herbicide or pesticide that the manufacturer did not add but was used by a producer in growing an ingredient in the product? Recent cases confirm that such a product can still be called “natural” – at least according to most federal courts – but probably not “pure.” Let’s take a look at the state of the law and how we got here, so that your brand can carefully craft claims for your processed food products.

In February in <a href="https://casetext.com/case/parks-v-ainsworth-pet-nutrition-llc-1?q=Parks%20v.%20Ainsworth%20Pet%20Nutrition,%20LLC%20d%2Fb%2Fa%20Rachael%20Ray%20Nutrish%20and%20J.M.%20Smucker%20Company&amp;PHONE_NUMBER_GROUP=C&amp;sort=relevance&amp;p=1&amp;type=case&amp;tab=keyword&amp;jxs=&amp;resultsNav=false">Parks v. Ainsworth Pet Nutrition, LLC</a>, the Southern District of New York considered Rachael Ray Nutrish’s advertisements and labeling of its line of Super Premium Food for Dogs as “natural.” The plaintiff alleged that the dog food products contain residue of glyphosate, an “unnatural” biocide, and that the presence of glyphosate is not disclosed to consumers, who rely on the “natural” representation when purchasing the products. The court had <a href="https://casetext.com/case/parks-v-ainsworth-pet-nutrition-llc?q=Parks%20v.%20Ainsworth%20Pet%20Nutrition,%20LLC%20d%2Fb%2Fa%20Rachael%20Ray%20Nutrish%20and%20J.M.%20Smucker%20Company&amp;PHONE_NUMBER_GROUP=C&amp;sort=relevance&amp;p=1&amp;type=case&amp;tab=keyword&amp;jxs=&amp;resultsNav=false">ruled on a prior motion to dismiss</a> that, to survive dismissal, the plaintiff must plead that the products contain a material amount of glyphosate because “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 his amended complaint and brief in opposition to the second motion to dismiss, the plaintiff argued that the amount of glyphosate is not relevant, and any glyphosate, regardless of amount, makes a “natural” label misleading, in violation of Section 349 of the New York General Business Law, New York’s core consumer protection law. The court disagreed. Because the amount of glyphosate was lower than the Food and Drug Administration’s (FDA’s) <a href="https://www.law.cornell.edu/cfr/text/40/180.364">allowed tolerance level for glyphosate in animal feed</a>, the court found that the glyphosate residue was not likely to affect consumer choice, resulting in the “natural” label not being materially misleading to a reasonable consumer. Accordingly, the court dismissed the complaint for a second time and, this time, without leave to amend.

The court in Parks drew on the now-consistent federal case law on “natural” claims arising from the discovery of trace amounts of glyphosate used in growing an ingredient in a processed food product. When federal-court plaintiffs began challenging these claims, around 2014, the plaintiffs’ allegations often survived the motion to dismiss stage. For example, in California in Von Slomski v. Hain Celestial Group, Inc., the court found that plaintiffs adequately alleged that a reasonable consumer would likely be deceived by defendant’s “100% Natural Teas” logo on the outer packaging of its teas because the teas were, according to plaintiffs, “contaminated” by insecticides, fungicides and herbicides that are “man-made” and “not natural.”

As the years have progressed, plaintiffs’ claims have been less successful, and some of the same defenses used in earlier cases have resonated with federal courts across the country, such as the argument, rejected by the court in Von Slomski, that a reasonable consumer would understand that a product labeled anything less than “organic” (and, as noted in 2017 by the District of Minnesota in <a href="https://casetext.com/case/in-re-gen-mills-glyphosate-litig">In re General Mills Glyphosate Litigation</a>), even “organic” products, may contain trace pesticides. That and several other arguments have been successful with federal courts and resulted in the dismissal of plaintiffs’ complaints, including that the term “natural” contemplates the use of pesticides and herbicides. The Federal Trade Commission’s (FTC’s) <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-issues-revised-green-guides/greenguides.pdf">Green Guides</a>, which are designed to help marketers avoid making environmental claims that mislead consumers even though they do not have the force of law, provide support for this argument. The Green Guides specifically permit a seller to make a “free-of” claim “even for a product, package, or service that contains or uses a trace amount of a substance if: (1) the level of the specified substance is no more than that which would be found as an acknowledged trace contaminant or background level; (2) the substance’s presence does not cause material harm that consumers typically associate with that substance; and (3) the substance has not been added intentionally to the product.”

Despite this fairly clear recent precedent in federal court on the “natural” issue, in February, a California court in Tran v. Sioux Honey Associate, Cooperative certified a class challenging the advertisements and labeling of various honey products as “Pure” or “100% Pure.” These products also contain trace amounts of glyphosate, like the products in Parks. The court had first considered this case in 2017, but stayed the action for at least six months pending resolution by the FDA of a central issue in the case, namely the tolerance level for glyphosate in honey. Six months elapsed. The FDA then responded to a letter from the court, respectfully declining to provide a determination regarding whether and in what circumstances honey containing glyphosate may or may not be labeled “Pure” or “100% Pure.” The court lifted the stay, and litigation restarted in earnest. While the court in Tran did not consider the merits of the “Pure” and “100% Pure” representations in granting class certification, class counsel may now represent a class of “all persons residing in California, who, from January 2014 to the Present, purchased, for personal use and not resale, Sue Bee Products.”

The takeaway is that brands should be sensitive about making “natural” and “pure” claims when they know their processed food products contain glyphosate residue. If your product contains less than the FDA-established tolerance level of glyphosate for the ingredients in processed food products, then you’re probably in the clear – though you may still have to defend against a class action in this evergreen area.

It’s a Mixed Salad for the ‘Natural’ and ‘Pure’ Claims for Foods With Trace Pesticides