The lawsuit* - which was filed three days before the Environmental Protection Agency (EPA) issued a draft risk assessment concluding that glyphosate “is not likely to be carcinogenic to humans,” mirrors a series of complaints filed in recent months by The Richman Law Group against a series of big brands, from Quaker Oats to Post Foods, which have had made little progress in the courts.
While the trace levels of glyphosate allegedly found in samples of Bigelow’s green tea (0.38 parts per million) via independent testing** conducted for the plaintiff are well below the EPA's legally permitted threshold of 1ppm for dried tea, the OCA argues that reasonable consumers would not expect to see glyphosate residues at any level in products making ‘all natural’ claims.
Plaintiff: Consumers think 'all natural' should mean no pesticide residues
According to the complaint* filed in Superior Court in the District of Columbia (2016 CA 006309 B): “These claims are false, deceptive, and misleading. The products at issue are not ‘All Natural,’ but instead the products contain the synthetic chemical glyphosate, a potent biocide and human endocrine disruptor, with detrimental health effects that are still becoming known.”
It goes on to cite a 2015 phone survey by Consumer Reports showing that two thirds of consumers believed that a ‘natural’ label on packaged and processed foods meant that ‘no toxic pesticides were used.’
Cindi Bigelow: These lawsuits are completely frivolous
However, Bigelow president and CEO Cindi Bigelow told FoodNavigator-USA that the “irresponsible” ands “scaremongering” lawsuit – and the headlines it had generated – provided no context, and failed to explain that the levels at issue were microscopic.
She also noted that Bigelow’s suppliers did not use glyphosate on their tea plantations and that the levels alleged in the lawsuit were so low that they most likely had come from “airborne” contamination from neighboring growing areas.
Bigelow routinely tested its dried and brewed teas for pesticide residues, and had found “nothing – zero glyphosate - in the cup [brewed Bigelow tea] ever,” while the dry tea samples tested “between zero and 0.1ppm,” she explained. “And that’s just microscopic. But my point is that we don’t just say ‘no’ .... we test for this stuff and it’s not there.”
She added: “These lawsuits are completely frivolous. OCA has a problem with Monsanto, and they should be taking this up with them. The microscopic traces they claim they found in a single sample are not even a conversation point, but the consumer doesn’t understand that. They just see headlines saying Bigelow has RoundUp weedkiller in its tea.”
Attorney: Courts are showing some resistance to these cases
So what progress have such cases made through the courts? Perkins Coie partner Charles Sipos told FoodNavigator-USA: “Some initial rulings suggest that this attempt to equate natural with purity is not one that courts are particularly persuaded by.”
In a July 12 ruling tossing out a group of lawsuits against General Mills querying ‘natural’ claims on Nature Valley products containing trace levels of glyphosate, for example, Judge Michael J. Davis said 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.”
Sipos added: “The plaintiff's bar continues to be pretty creative in coming up with new ways of attacking natural claims on products, but at least initially on these glyphosate cases, you see some resistance by courts as to whether that misleads consumers.”
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.
A November 2015 report from the European Food Safety Authority (EFSA) also found that "glyphosate is unlikely to pose a carcinogenic hazard to humans and the evidence does not support classification with regard to its carcinogenic potential." Meanwhile, a May 2016 report by the Food and Agriculture Organization of the United Nations' (FAO's) Panel of Experts on Pesticide Residues in Food and the Environment, and the World Health Organization (WHO) Core Assessment Group on Pesticide Residues found that "glyphosate is unlikely to be genotoxic at anticipated dietary exposures."
In its December 2017 draft risk assessment the EPA concluded that glyphosate “is not likely to be carcinogenic to humans.”
* The case is Organic Consumers Association vs R.C. Bigelow Inc filed in the Superior Court of the District of Columbia on December 15. It alleges violations of the Columbia Consumer Protection Procedures Act.
**According to the lawsuit: “Tests conducted by an independent laboratory using liquid chromatography mass spectrometry revealed the amount of glyphosate in Bigelow Green Tea to be 0.38 ppm.”
In the FDA’s 2015 call for comments on defining the word ‘natural,’ the agency said it had not considered things like pesticide residues when it came up with its policy on natural, which defined natural 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.”
It added: "When we established our policy concerning the use of the term 'natural,'... it was not intended to address food production methods, such as the use of genetic engineering or other forms of genetic modification, the use of pesticides, or the use of specific animal husbandry practices, nor did it explicitly address food processing or manufacturing methods, such as thermal technologies, pasteurization, or irradiation [bold emphasis added by us]."