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Judge’s reasoning in Quakers Oats ‘100% natural’ glyphosate case is ‘flatly wrong,’ claims attorney

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By Elaine Watson+

28-Aug-2017
Last updated on 28-Aug-2017 at 21:58 GMT2017-08-28T21:58:44Z

Picture: adventuresofmel.com
Picture: adventuresofmel.com

A federal judge has tossed a high-profile lawsuit accusing Quaker Oats of misleading shoppers with 100% natural claims on products containing trace levels of the herbicide glyphosate, but it may be too early for parent company PepsiCo to crack open the champagne just yet, say legal experts.

While some attorneys we spoke to agreed with Illinois judge Charles Ronald Norgle that the claims were expressly pre-empted by federal law (the Food, Drug and Cosmetic Act or FDCA), others said Norgle was “flatly wrong,” and that the reasoning he used was so flawed that the case is very likely to be overturned on appeal.

In his August 14 order, Norgle said that, “because Congress has preempted the field of food labeling and because the presence of pesticides and chemical residues is governed by federal statute, plaintiffs cannot challenge Quaker Oats labeling under state or common law.”

He also noted that the levels of residue detected in the oatmeal products were below legal thresholds established by the EPA and 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.”

He went on to cite a paragraph from the FDA’s 2015 call for comments  on defining the word ‘natural’ in which the agency said it had not considered things like pesticide residues when it came up with its policy on natural, which defined it as “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.”

‘Serious holes’ in judge’s analysis?

However, one leading food law attorney who has defended multiple food and beverage companies in class action lawsuits, told FoodNavigator-USA that the order was a “total outlier” which would be “reversed, no question.”

For a start, he claimed, federal pesticide regulations are irrelevant in this case, as the plaintiff wasn’t alleging that the residues were above legal thresholds, just that reasonable consumers wouldn’t expect to find glyphosate – at any level - in products labeled ‘100% natural.’

Second, the FDA ‘policy’ on natural is not the law, just informal guidance, and even if it was legally binding, it is not instructive as regards the naturalness or otherwise of products containing pesticide residues because it doesn’t address the issue either way, he added.

Quite apart from this, however, said the source, judge Norgle is basically arguing that in a case like this, plaintiffs can’t sue under state law, which, he argued, was “flatly wrong.”

It does not accurately reflect the law

He added: “This is the first time I am aware of any judge that says there is what we call 'field pre-emption,' so it's a pretty radical ruling. It means the federal government has indicated its intention to ‘occupy the field,’ which means that all state laws that have anything to do with the subject matter are frozen out. In other words, the federal government has occupied this field, and there is no room for state consumer protection laws here.

“The problem is, it’s just flat wrong, it’s incorrect, it does not accurately reflect the law and there is no authority for it. If you go to 21 USC 343-1  [the FDCA express pre-emption provision] it makes it clear that it is not preempting all state laws, it is not occupying the field, the court just missed this one. This decision is going to be overturned.”

This is flat wrong

He added, “I’m a defense attorney, but sometimes you’ve got to be careful what you wish for. To me, this looks like the judge is not real keen on his federal courtroom being used for this type of consumer class action and this was a quick route for him to get rid of the case, but there are legion decisions that go exactly the opposite way, because we all know that the pre-emption that the FDCA has with respect to food labels is a limited pre-emption.

“There is room for state law, I mean, California even has its own food labeling law [which mirrors federal law], and federal courts cite it all the time. And ‘natural’ is one of those things that we know the federal government does not regulate [hence all the lawsuits]. And even if the federal law does regulate it, there’s plenty of room for state law to come in so long as you impose identical requirements [for example California’s Sherman law mirrors federal law].  

“The bottom line is there is no such thing as field pre-emption when it comes to the Food, Drug or Cosmetic Act.”

"Our clients are disappointed with the Court's decision to dismiss all of their consumer protection claims. I believe, however, that this ruling represents an outlier in the developing body of law surrounding unsafe chemicals in supposedly 'natural' food. To that end, we are exploring all of our options of how best to protect both consumer rights and our food systems."

Kim Richman, founding member, Richman Law Group 

What happens next?

So what might happen next?

There is a possibility that Quaker Oats might even consider settling, despite its victory here, given that there are such compelling grounds for a reversal, he speculated.

“If I was them I’d settle the case, keep this decision intact and get out of Dodge… They would have to write a check, but that’s a good time to settle a case, when you’re a winner.”

Attorney: This is a legitimate finding

Another defense attorney we spoke to, however, argued that Norgle had made “a legitimate finding.”

He added: “There is such a tangle of regulations governing glyphosate, a court could say the federal government has occupied the field. Field preemption is tough but combine the federal regulations and pronouncements with a fairly unsympathetic case, and this is a great result.”

The pesticide angle makes this case unique

A third attorney who agreed to speak on condition of anonymity, however, claimed that the finding was “a little unusual, in that most judges do not find preemption in natural cases.” 

The source added: “Only state laws that differ than FDCA requirements are preempted, and the FDCA does not have express requirements for natural (at least not yet)… I agree with the end result though, the pesticide angle makes this case unique. 

“A state law determination that the residue is too high for a ‘natural’ label should be preempted.  Federal regulations say what levels are allowable, and states cannot decide what levels are appropriate for some products versus others.”

The source also noted that other judges had thrown out similar cases vs General Mills, albeit on very different grounds, with Judge Michael J. Davis recently arguing that it was “implausible that a reasonable consumer” would believe that the products “could not contain a trace amount of glyphosate that is far below the amount permitted for organic products.”

Quaker Oats did not respond to requests for comment on the order.

The case is Gibson v. Quaker Oats Co.  1:16—cv-04853 in the northern district of Illinois  

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