Glyphosate in the spotlight again as activists target Lipton, Skippy and other CPG brands over pesticide residues

By Elaine Watson

- Last updated on GMT

Picture: Gettyimages-Zerbor
Picture: Gettyimages-Zerbor

Related tags Roundup

With glyphosate in the spotlight again as anti-GMO activist group Moms Across America released test results suggesting trace levels of the herbicide (commonly used with GE crops) in brands from Lipton to Skippy’s, we spoke to Amin Talati Upadhye attorney Ryan Kaiser to find out how companies should respond to such data and the lawsuits it is increasingly prompting.

To place the data in context, Moms Across America released data​ from Health Research Institute Laboratories revealing a wide range of detectible glyphosate in samples of almond milk, breads, veggie burgers, and other products.

While the group describes the levels as “disturbing​,” they ranged from just 0.87 parts per billion for almond milk (0.00087ppm) and 14.13ppb for bread (0.01413ppm) to 208.29ppb for Lipton green tea, which a Unilever spokesperson noted was still significantly below the Environmental Protection Agency’s legally permitted thresholds​.

"The safety of our consumers is our number one priority, and all of our Lipton teas are safe to drink. The trace levels of glyphosate reported were significantly below tolerances established by US and European regulatory authorities. Lipton is at the forefront of the industry in its work to reduce – and when possible, eliminate – the use of pesticides in farming. We do this through our global initiatives such as Unilever’s Sustainable Agriculture Code."

Meanwhile, Skippy’s ‘100% natural’ peanut butter - described by Moms Across America as “high in glyphosate​” – was claimed to contain 11.71 ppb, which equates to 0.01171 ppm (well under the EPA threshold of 0.1ppm for peanuts).

However, Moms Across America argues that no level of glyphosate is safe, alleging that microscopic quantities of the herbicide “have been shown to cause neurotoxicity, liver disease  and endocrine disruption harm​,” and that reasonable consumers would not expect to see glyphosate at any level​ in products making ‘all natural’ claims (a point made in several recent lawsuits​)​.

Ryan Kaiser partner Amin Talati Upadhye
Ryan Kaiser: "Indemnification clauses can also help shift the expense of litigation to the supplier.."

Steps manufacturers can take

So how should manufacturers respond? And could the imminent arrival of glyphosate on California’s Prop 65 list [albeit with a safe harbor level likely to be well above the trace amounts indicated above​] cause major headaches for the food industry?

According to Kaiser, “The heightened scrutiny absolutely means manufacturers need to pay very close attention to supply chain.  Steps they can take - aside from ceasing use of ‘all natural’ claims - include better quality control provisions and reps and warranties in their supply agreements. 

“While contracts can’t erase trace amounts of glyphosate, where detected, they can help manufacturers make the case that they acted reasonably and in good faith,” ​he said.

“Indemnification clauses can also help shift the expense of litigation to the supplier,” ​he added.

While this won’t address the reputational harm and ‘nuisance factor’ of a lawsuit, he acknowledged, “It will take away some of the sting from paying settlement amounts. Manufacturers can also budget for these challenges and see them through in court, which we’re seeing a lot of brands doing with success.”

In a July 2017 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​​.”


A similar lawsuit vs Quaker (Gibson v Quaker Oats,1:16—cv-04853) was recently dismissed​ on the grounds of federal pre-emption, although the decision was later appealed​.

As has often been pointed out, reasonable consumers don’t necessarily expect that natural products won’t contain trace residual amounts of herbicides and pesticides that are below the allowable limits,” ​said Kaiser.

Prop 65

But what about Prop 65?

“I don’t know that manufacturers should be concerned about glyphosate being on the Prop 65 list, but they should certainly be aware,” ​argued Kaiser.

“Detection of glyphosate on or in products, even if below the allowable limit, will result in more challenges. The key will be having the documentation and testing lined up to prove that the products are compliant ​[ie. below the safe harbor threshold, which has provisionally been set at 1100 micrograms per day].

“Contractual controls over suppliers can go a long way here, by ensuring that manufacturers have access to testing, documentation and traceability information showing that their end product is compliant.”

Bigelow CEO: 'These lawsuits are completely frivolous...'

Tea brand Bigelow is currently defending itself against a lawsuit filed by The Richman Law Group on behalf of the Organic Consumers Association (OCA) alleging it misrepresented its green tea as ‘all natural’ owing to trace levels of glyphosate residue.

The lawsuit​*​ - which was filed three days before the 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.

bigelow green tea classic

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​.

According to the complaint​​ filed 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.”

However, Bigelow president and CEO Cindi Bigelow told FoodNavigator-USA that the “irresponsible​” and “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.”

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."​​

EFSA further concluded​ in 2017 that, "The current assessment concluded that the weight of evidence indicates that glyphosate does not have endocrine disrupting properties through oestrogen, androgen, thyroid or steroidogenesis mode of action based on a comprehensive database available in the toxicology area. The available ecotox studies did not contradict this conclusion."

In its December 2017 draft risk assessment​ the EPA concluded that glyphosate “is not likely to be carcinogenic to humans​.”

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