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A federal court has dismissed with prejudice a putative class action alleging that Quaker Oats’ use of “100% Natural” on its products misleads consumers, holding that the plaintiffs’ claims are expressly preempted by the Food, Drug and Cosmetic Act (FDCA). Gibson v. Quaker Oats Co., No. 16-4853 (N.D. Ill., entered August 14, 2017). The plaintiffs alleged that Quaker’s use of “natural” was misleading under several state statutes because the products contained residues of the herbicide glyphosate. The court held that nutritional and food labeling is governed by the FDCA, preempting the plaintiffs' state law claims, which were “attempting to challenge how food stuffs are marketed." In addition, the court held that the FDCA expressly governs the presence of pesticide and herbicide residues in food, “establishing a clear and manifest purpose that preempts state regulation of food labeling.” The court also found the plaintiffs had no standing to pursue claims related…

Sanderson Farms, Inc.’s "all natural" chicken contains pesticides, antibiotics and other pharmaceuticals, according to a lawsuit filed by the Center for Food Safety, Friends of the Earth and Organic Consumers Association. Organic Consumers Ass’n v. Sanderson Farms, No. 17­-3592 (N.D. Cal., filed June 22, 2017). The plaintiffs allege that Sanderson’s chicken products are advertised as “100% natural,” but testing purportedly shows the products contain human and veterinary antibiotics, tranquilizers, growth hormones, steroids and pesticides. The complaint further alleges the presence of such drugs indicate that Sanderson’s raises its chickens in “unnatural, intensive­-confinement, warehouse conditions” rather than “sipping lemonade and playing volleyball” as represented in the company’s online advertising. For alleged violations of California consumer­ protection laws, the plaintiffs seek accounting of profits, injunctive relief, corrective advertising and attorney’s fees. “Consumers should be alarmed that any food they eat contains steroids, recreational or anti­-inflammatory drugs, or antibiotics prohibited for use in…

A Washington Post report tracking multiple shipments of corn and soybeans imported from Turkey has purportedly found that the food was sold in the U.S. market fraudulently labeled as organic. The article argues that U.S. Department of Agriculture organic standards create loopholes that allow fraud to slip through. Organic corn and soybeans grown outside of the United States are required to be inspected, the Post asserts, but they are not required to be tested for pesticide residue, and inspectors that do test have apparently found high levels of pesticide use on the supposedly organic foods. The Post tracked three shipments: the first was rejected by the importing company for failing to have proper documentation, the second was fraudulently relabeled as organic soybeans before being accepted by its importing company, which has since stopped selling "all potentially affected product," and the third was rejected by importers but continued to be marketed…

A group of California citrus growers has sued the U.S. Department of Agriculture seeking to stop implementation of a new rule that would lift the ban on importation of lemons from Argentina, claiming the rule violates both “sound science and good public policy.” U.S. Citrus Sci. Council v. USDA, No. 17­-0680 (E.D. Cal., filed May 17, 2017). The plaintiffs assert that the United States has banned Argentine lemon imports since 1947 because “highly destructive plant pests and diseases plague Argentine citrus” and the Argentine government agency charged with plant protection “has a long and problematic history of failing to report pest and disease outbreaks promptly and of failing to ensure compliance” with basic plant protection measures. The plaintiffs argue that the Animal and Plant Health Inspection Service violated both the Plant Protection Act and the Administrative Procedure Act when it promulgated the new rule relying on conclusions reached during a…

Consumer­ advocacy group Beyond Pesticides has filed suit against the maker of Mott’s applesauce products, alleging the term “natural” on its labels misleads consumers because the products contain the pesticide acetamiprid. Beyond Pesticides v. Dr Pepper Snapple Grp., No. 2017 CA 003156 B (D.C. Super. Ct., filed May 5, 2017). The plaintiff asserts that the “natural” and “All Natural Ingredients” labeling on several varieties of Mott’s applesauce mislead consumers who would not expect the products to contain a “synthetic, unnatural chemical.” Claiming violations of the District of Columbia’s Consumer Protection Procedures Act, the plaintiff seeks injunctive and equitable relief—including the establishment of a “community fund” to raise consumer awareness of acetamiprid—and attorney’s fees.   Issue 634

California's Office of Environmental Health Hazard Assessment (OEHHA) has announced that glyphosate will be listed under the state's Safe Drinking Water and Toxic Enforcement Act (Prop. 65). In September 2015, OEHHA announced its findings on the carcinogenicity of glyphosate, a chemical used in pesticides that has been targeted in several putative class actions challenging whether a product can be "natural" if its ingredients retain some glyphosate residue from the growing process. The effective date of listing and the proposed safe harbor level will be determined after a California appeals court rules on a stay.   Issue 630

The Organic Consumers Association (OCA) and Beyond Pesticides have filed a complaint against the Sioux Honey Association alleging the company’s Sue Bee® honey products contain the herbicide glyphosate despite being marketed as “Pure” and “Natural.” Organic Consumers Assoc. v. Sioux Honey Assoc. Coop., No. 008012 (D.C. Super. Ct., filed November 1, 2016). The complaint acknowledges that the glyphosate “may be due to the application of glyphosate on crops by neighboring farms and unrelated to beekeeping activities” but argues that the labeling is inaccurate regardless. The plaintiff organizations seek an injunction enjoining the labeling and mandating a corrective advertising campaign as well as costs. “A consumer seeing the words ‘Pure,’ ‘100% Pure’ or ‘Natural’ on a honey product would reasonably expect that product to contain nothing other than honey,” OCA International Director Ronnie Cummins said in a November 1, 2016, press release. “Regardless of how these products came to be contaminated,…

A consumer has filed a putative class action against The Quaker Oats Co. alleging the company misrepresents its oatmeal products as natural and “eco-friendly” despite containing glyphosate, “a potent herbicide that last year was declared a probable human carcinogen by the cancer research arm of the World Health Organization.” Wheeler v. Quaker Oats Co., No. 16-5776 (N.D. Ill., removed to federal court June 1, 2016). The complaint argues that although “[t]here is nothing unlawful about Quaker Oats’ growing and processing methods,” the company has misled consumers by claiming “that Quaker Oats is something that it is not in order to capitalize on growing consumer demand for healthful, natural products.” The plaintiff asserts that no reasonable consumer would believe that Quaker’s products “contain anything unnatural, or anything other than whole, rolled oats” after seeing Quaker’s packaging and advertising. For allegations of unjust enrichment, breach of warranties and violations of Illinois’ consumer-protection…

A consumer has filed a putative class action against The Quaker Oats Co. alleging the company falsely advertises its oatmeal products as “100% natural” because it contains the herbicide glyphosate. Cooper v. Quaker Oats Co., No. 16-2364 (N.D. Cal., San Francisco Div., filed April 29, 2016). The plaintiff argues the cancer-research arm of the World Health Organization declared glyphosate—”a potent and unnatural biocide” that the company sprays on oats as a drying agent, according to the complaint—to be a “probable human carcinogen” in 2015. The complaint admits the use of glyphosate is legal but asserts that its use in combination with a “100% natural” claim amounts to misrepresentation. For allegations of breach of warranty and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, a compelled corrective advertising campaign, damages, restitution and attorney’s fees.   Issue 603

The Alliance for Natural Health (ANH) has released a white paper that allegedly identifies glyphosate residue in common breakfast foods, including “flour, corn flakes, bagels, yogurt, potatoes, organic eggs, and coffee creamers.” Part of a campaign seeking to prohibit the herbicide, the white paper purportedly relies on the results of ELISA (enzyme linked immunosorbent assay) tests commissioned from an independent laboratory, which reported that 10 samples taken from instant oatmeal, eggs, bagels, and other breakfast products contained glyphosate in detectable amounts. In particular, ANH notes that organic cage-free eggs exceeded the U.S. Environment Protection Agency’s (EPA’s) tolerance level for glyphosate residue. The white paper reflects a new trend of consumer groups financing independent laboratory studies to support their campaigns. According to an April 21, 2016, Beyond Pesticides blog post, Moms Across America commissioned a report on glyphosate in California wine that allegedly found glyphosate residue in all samples tested.  …

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