The lawsuits - filed in the district of Columbia, New York and California – acknowledge that the trace levels of glyphosate in selected Post Shredded Wheat products* (0.18 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 wheat labeled as ‘100% natural’.
Consumers think natural should be no pesticide residues, period, argues plaintiff
In the complaint** filed in New York (Robert Stephenson et al vs Post Foods LLC and Post Holdings Inc 1:16-cv-03396), the plaintiff argues: “Shredded Wheat is not “100% Natural,” but instead contains 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.”
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.’
Plaintiff’s attorney: ‘Glyphosate in any amount is not natural’
Kim Richman at the Richman Law Group in Brooklyn, which is one of the law firms representing the plaintiffs in Washington DC and New York, added: “Consumers don’t expect a product labeled ‘natural’ to contain a chemical that has been classified by the WHO as a ‘probable’ human carcinogen. Post advertises Shredded Wheat as ‘100 Percent Natural,’ and glyphosate in any amount is not natural.”
According to the Organic Consumers Association (OCA), which filed the suit in the district of Columbia: “Even at low levels, including levels below those approved by regulatory agencies, studies show that glyphosate is an endocrine disruptor. Endocrine disruption may result in cancer, reproductive and developmental problems, and birth defects.”
Defense attorney: Anything can be deadly (including water) if the dose is too high
Defense attorneys contacted by FoodNavigator-USA about the earlier wave of lawsuits vs Quaker – which the complaints against Post precisely mirror - predicted that the plaintiffs could face an uphill battle, however.
For a start, defendants in such cases 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 ), predicted David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP.
They will also likely “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,” he added.
Dale J. Giali, a partner at Mayer Brown added: “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.”
Glyphosate and safety
A 2015 statement from the International Agency for Research on Cancer (part of the World Health Organization) that glyphosate was ‘probably carcinogenic to humans’ has 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, added food law attorneys we spoke to.
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 link 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.
What do food & beverage CEOs think 'natural' means? Check out our recent industry vox pop
FoodNavigator-USA has reached out to Post Holdings for comment and will update this article if and when it responds.
Read more about the FDA’s ‘natural’ probe HERE.
*According to the OCA, the Shredded Wheat samples were “tested by an independent lab in California, using liquid chromatography-mass spectrometry, a commonly used technique in medical and chemical labs.”
**The case is Robert Stephenson et al v. Post Foods LLC and Post Holdings Inc in the eastern district of New York (1:16-cv-03396). The other cases are: Any Wu et al vs Post Foods LLC and Post Holdings Inc in the northern district of California (3:16-cv-03494), and the Organic Consumers Association on behalf of the general public vs Post Foods LLC and Post Holdings Inc in the superior court of the district of Columbia civil division.