In Re General Mills Glyphosate Litigation

Filing 73

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1.Plaintiffs' Request for Leave to File Supplemental Authority 72 is GRANTED. 2. Defendant General Mills, Inc.'s Motion to Dismiss the Consolidated Class Action Complaint 54 is GRANTED and this matter is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Michael J. Davis on 7/12/17. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: GENERAL MILLS GLYPHOSATE
LITIGATION,

MEMORANDUM OF LAW & ORDER
Civil File No. 16-2869 (MJD/BRT)

Brian C. Gudmundson and Bryce D. Riddle, Zimmerman Reed LLP; Kim E.
Richman, Richman Law Group; Beth E. Terrell and Adrienne D. McEntee, Terrell
Marshall Law Group PLLC; Lori G. Feldman and Courtney E. Maccarone, Levi &
Korsinsky LLP; Edward A. Wallace, Amy E. Keller, and Adam M. Prom, Wexler
Wallace LLP; Stephen R. Basser, Barrack, Rodos & Bacine; and John G. Emerson,
Emerson Scott, LLP; Counsel for Plaintiffs and the Putative Class.
Jerry W. Blackwell, Benjamin W. Hulse, and Emily A. Ambrose, Blackwell Burke
P.A.; David T. Biderman and Charles C. Sipos, Perkins Coie LLP; Counsel for
Defendant General Mills, Inc.
I.

INTRODUCTION
This matter is before the Court on Defendant General Mills, Inc.’s Motion

to Dismiss the Consolidated Class Action Complaint. [Docket No. 54] The Court
heard oral argument on May 30, 2017. Because Plaintiffs fail to assert a plausible
claim, the Court grants the motion to dismiss.
II.

BACKGROUND
A.

Factual Background
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According to Plaintiffs’ Complaint:
Defendant General Mills, Inc. (“General Mills” or “Defendant”) is a
Delaware corporation headquartered in Minnesota. (Consolidated Class Action
Complaint (“Compl.”) ¶ 30.) Defendant manufactures, markets, sells and
distributes oat-based food products under the trademark Nature Valley. (Id. ¶
31.) The products at issue in this lawsuit are 23 flavors of Nature Valley products
in 8 categories: Nature Valley crunchy granola bars in at least 6 flavors, Trail Mix
chewy granola bars in at least 2 flavors, Sweet & Salty granola bars in at least 2
flavors, Breakfast Biscuits in at least 3 flavors, Biscuits in at least 2 flavors,
Oatmeal Squares in at least 4 flavors, Oatmeal Bars in at least 2 flavors, and
Oatmeal Bistro Cups in at least 2 flavors (collectively, “Nature Valley Products”
or “Products”). (Id. ¶ 5.)
The central allegation in the Complaint is that Defendant’s Nature Valley
Products are labelled as “Made with 100% Natural Whole Grain Oats,” and this
claim is misleading, false, and deceptive because Nature Valley Products contain
trace amounts of the chemical glyphosate, an herbicide and desiccant, which is
commonly sprayed on oat crops to dry them. (Compl. ¶¶ 1-2, 13, 70, 73.) An
independent laboratory has reported that Nature Valley Products contain 0.45

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parts per million of glyphosate. (Id. ¶ 13.) Plaintiffs claim that “the oats are most
likely the source” of the trace amounts of glyphosate found in the Nature Valley
Products, but “only General Mills knows . . . what would account for the
presence of glyphosate in Nature Valley.” (Id. ¶¶ 2 n.1, 89.)
Glyphosate was invented by Monsanto and marketed as a biocide under
the name Roundup. (Compl. ¶ 11.) Farmers apply glyphosate to oats as a drying
agent before harvest in order to increase the oat harvest, which is not a “natural”
method of growing or harvesting oats. (Id. ¶ 83.) Plaintiffs claim that glyphosate
is not “natural,” but rather is an “unnatural” “synthetic biocide.” (Id. ¶¶ 10, 12.)
It is created by artificially replacing one of the hydrogen atoms in the amino acid
glycine with a phosphonomethyl group. (Id. ¶ 80.)
Plaintiffs are Mary Wolosyzn, an Illinois resident; Edward Salamanca, a
California resident; Nesha Ritchie, a California resident; and Yesenia Nuez, a
New York resident. (Compl. ¶¶ 32-35.) All four Plaintiffs claim that they saw,
relied upon, and reasonably believed Defendant’s representation on the product
box that Nature Valley Products are “Made with 100% Natural Whole Grain
Oats.” (Compl. ¶ 36.) They each purchased particular flavors and varieties of

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Nature Valley Products on several occasions and would not have done so if they
had known that the Products contained glyphosate. (Id. ¶¶ 32-35, 39.)
B.

Procedural History

On December 8, 2016, the Court granted a motion to consolidate multiple
glyphosate cases brought against Defendant General Mills. [Docket No. 43] On
January 9, 2017, Plaintiffs Wolosyzn, Salamanca, Ritchie, and Nuez filed a
Consolidated Class Action Complaint against General Mills. [Docket No. 47]
The Consolidated Class Action Complaint asserts: Count 1: Violation of
the Minnesota Prevention of Consumer Fraud Act, Minn. Stat. § 325F.69; Count
2: Violation of the Minnesota Unlawful Trade Practices Act, Minn. Stat. §
325D.13; Count 3: Violation of Minnesota Uniform Deceptive Trade Practices Act,
Minn. Stat. § 325D.44; Count 4: Breach of Express Warranty; Count 5: Unjust
Enrichment; Count 6: Violation of the Illinois Consumer Fraud and Deceptive
Business Act, 815 ILSC 505/1, et seq.; Count 7: Violations of California’s
Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq.; Count 8:
Violations of California’s False Advertising Law, Cal. Bus. & Prof. Code § 17500,
et seq.; Count 9: Violations of California’s Unfair Competition Law, Cal Bus. &
Prof. Code § 17200, et seq.; Count 10: Violation of the New York General

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Business Law § 349; and Count 11: Violation of the New York General Business
Law § 350.
The Consolidated Class Action Complaint seeks certification of a national
class of individuals who purchased Nature Valley Products during the Class
Period. (Compl. ¶ 127.) It also seeks certification of state classes for California,
Illinois, and New York residents who purchased Nature Valley Products within
their respective states. (Id. ¶ 128.) Plaintiffs seek declaratory relief, injunctive
relief, restitution, disgorgement, statutory and monetary damages, and a
constructive trust. (Id. at pp. 53-54.)
Defendant has now brought a motion to dismiss Plaintiffs’ Complaint
based on lack of standing, the primary jurisdiction doctrine, failure to state a
claim upon which relief may be granted, and failure to plead fraud with
particularity. Defendant has also filed a motion to strike certain allegations in
the Complaint regarding the human health risks posed by trace amounts of
glyphosate in packaged food. The Court grants Defendant’s motion to dismiss
based on failure to state a claim upon which relief can be granted. In light of that
dismissal, the Court denies the motion to strike as moot.
III.

DISCUSSION
A.

Standing
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1.

Standing Requirement

Article III requires an injury [to] be concrete, particularized, and
actual or imminent. An alleged injury cannot be too speculative for
Article III purposes. If there is no actual harm, then there must at
least be an imminent harm. As the Supreme Court emphasized [],
mere speculation that injury did or might occur cannot satisfy the
requirement that any injury in fact must be fairly traceable to the
alleged source.
Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014) (citations
omitted).
“In the context of defective products, it is not enough for a plaintiff to
allege that a product line contains a defect or that a product is at risk for
manifesting this defect; rather, the plaintiffs must allege that their product
actually exhibited the alleged defect.” Id. at 1030 (citation omitted).
2.

Whether Plaintiffs Have Shown that the Products Contain
Glyphosate

Defendant claims that Plaintiffs lack standing because they have failed to
allege that glyphosate is found in all Nature Valley Products, and, thus, have
failed to allege that the Products purchased by Plaintiffs actually contained
glyphosate. The Court rejects this argument.
This case is not like Wallace, in which the plaintiffs’ allegations did not
establish that all or even most of the products at issue contained the relevant
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defect and, so, it was “pure speculation” to conclude that the particular packages
purchased by the plaintiffs were defective. 747 F.3d at 1030-31. At this stage,
Plaintiffs have alleged that all Nature Valley Products contain glyphosate.
Specifically, Plaintiffs have alleged that “[t]he Products at issue do not comprise
‘100% natural whole grain oats,’ but instead contain the chemical glyphosate.”
(Compl. ¶ 1.) Plaintiffs have further alleged:
General Mills deceptively and misleadingly conceals material facts
about the Products, namely, that the Products are not “100%
Natural,” or “Made with 100% Natural Whole Grain Oats” because
in fact the Products contain glyphosate; and the Products are not
what a reasonable consumer would consider “100% Natural” or
“Made with 100% Natural Whole Grain Oats” because they contain
glyphosate.
(Id. ¶ 87.)
Defendant’s objections that these allegations are not true and concerns
regarding the details of the alleged testing are issues properly addressed at a
later stage in the proceedings. Accepting Plaintiffs’ factual allegations as true,
they have sufficiently pled that all Nature Valley Products contain trace
glyphosate and, thus, all Nature Valley Products purchased by Plaintiffs
necessarily contained glyphosate.

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3.

Whether Plaintiffs Have Standing to Bring Claim Based on
Substantially Similar Products

“The named plaintiffs in a class action may not rely on injuries that the
putative class may have suffered, but instead must allege that they personally
have been injured.” Chin v. Gen. Mills, Inc., No. CIV. 12-2150 (MJD/TNL), 2013
WL 2420455, at *3 (D. Minn. June 3, 2013) (citations omitted). Thus, Plaintiffs
lack standing to assert claims based on products that they did not purchase. Id.
Defendant argues that, in this case, Plaintiffs lack standing to bring claims
based on the 20 flavors or varieties of Nature Valley Products that were not
purchased by any Plaintiffs. The Complaint alleges that Plaintiffs purchased
Oats ‘n Honey crunchy granola bars, Peanut Butter crunchy granola bars, and
Fruit & Nut Trail Mix chewy granola bars. (Compl. ¶¶ 32-35.)
All Nature Valley Products, as defined by Plaintiffs, contain the identical
label claim that they are “Made with 100% Natural Whole Grain Oats,” and,
according to Plaintiffs, all contain glyphosate-tainted oats. (Compl. ¶¶ 1, 4-5.)
Plaintiffs assert that they all relied on an identical representation that Nature
Valley Products were “Made with 100% Natural Whole Grain Oats.”
The Court holds that, based on the allegations of glyphosate on all oatbased Nature Valley Products, which also all bear the same “Made with 100%
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Natural Whole Grain Oats” label, the products purchased by Plaintiffs can be
defined as Nature Valley crunchy granola bars and chewy granola bars. The
particular flavors of these two products do not define still narrower categories of
products but, rather, are immaterial varieties of the same products. Cf. Chin, at
*3-4 (addressing Nature Valley products and not defining different flavors of the
same types of granola bars to be different products for purpose of standing).
Thus, Plaintiffs have standing to assert the claims set forth in the Complaint as to
Nature Valley crunchy granola bars and Nature Valley chewy granola bars.
Because no Plaintiff purchased Sweet & Salty granola bars, Breakfast Biscuits,
Biscuits, Oatmeal Squares, Oatmeal Bars or Oatmeal Bistro Cups, Plaintiffs lack
standing to pursue their claims as to these products.
4.

Whether Plaintiffs Have Standing to Assert Claims for
Injunctive Relief

[T]o seek injunctive relief, a plaintiff must show that he is under
threat of suffering injury in fact that is concrete and particularized;
the threat must be actual and imminent, not conjectural or
hypothetical; it must be fairly traceable to the challenged action of
the defendant; and it must be likely that a favorable judicial decision
will prevent or redress the injury.
Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 794 (8th Cir. 2016)
(citation omitted).
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In Plaintiffs’ Complaint, they seek injunctive relief including “(1) removing
any statement that the product is ‘100% Natural,’ ‘Natural,’ or any similar claim;
(2) adding a clear and full disclosure of the presence of glyphosate in the
Products; and/or (3) a reformulation of the Products so that they no longer
contain glyphosate.” (Compl. ¶ 124.) Plaintiffs have also pled that they would
consider purchasing Nature Valley Products again if they were free of
glyphosate. (Id. ¶ 40.) Further, they “would continue to purchase the Products
in the future if the Products were reformulated so that they did not contain
glyphosate.” (Id. ¶ 117.)
Defendant argues that Plaintiffs lack standing to pursue injunctive relief
because, in their Complaint, they admit that they have no intention of
purchasing Nature Valley Products as the currently exist. (Compl. ¶ 22 (“Had
Plaintiffs known at or before the time of purchase that the Products, in fact,
contain glyphosate, a synthetic biocide, they would not have purchased or would
not have paid as much for the products.”).) Defendant concludes that Plaintiffs
fail to allege that they will continue to be injured by the existence of trace
amounts of glyphosate in Nature Valley Products as they currently exist.

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The Court concludes that, if Plaintiffs will never buy Nature Valley
Products or be misled by the label on the Products again, then there is no threat
of injury and no standing for injunctive claims, regardless of the states of mind of
members of the putative class. See, e.g., Romero v. Flowers Bakeries, LLC, No.
14-CV-05189-BLF, 2015 WL 2125004, at *7 (N.D. Cal. May 6, 2015). But see, e.g.,
Henderson v. Gruma Corp., No. CV 10-04173 AHM AJWX, 2011 WL 1362188, at
*7-8 (C.D. Cal. Apr. 11, 2011). However, here, Plaintiffs have alleged that they
would buy Nature Valley Products if Defendant eliminated glyphosate. Unlike
other false labelling cases, where, for example, the ingredient list belied the
labelling claim, Plaintiffs have no way of knowing if Defendant has eliminated
glyphosate and made the “100% Natural” claim “true” (as defined by Plaintiffs),
without first buying the Nature Valley Products to test them. Thus, a threat of
injury still exists to Plaintiffs because they do want to purchase Nature Valley
Products but will have no way of knowing in the future if the labels are accurate
absent an injunction. The Court holds that Plaintiffs have standing to seek
injunctive relief.
B.

Primary Jurisdiction Doctrine

As one of Defendant’s alternative arguments, it asserts that the Court
should dismiss this matter without prejudice under the primary jurisdiction
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doctrine because, in November 2015, the FDA announced “the establishment of a
docket to receive information and comments on the use of the term ‘natural’ in
the labeling of human food products.” 80 Fed. Reg. 69905-01, 69905 (Nov. 12,
2015).
The doctrine of primary jurisdiction applies to claims properly
cognizable in court that contain some issue within the special
competence of an administrative agency. Under the doctrine of
primary jurisdiction a court may leave an issue for agency
determination when it involves the special expertise of the agency
and would impact the uniformity of the regulated field. No fixed
formula exists for applying the doctrine of primary jurisdiction. In
every case the question is whether the reasons for the existence of
the doctrine are present and whether the purposes it serves will be
aided by its application in the particular litigation.
Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 909 (8th Cir. 2015) (citations
omitted). Courts “are always reluctant, however, to invoke the doctrine because
added expense and undue delay may result.” Access Telecommunications v. Sw.
Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998).
The Court concludes that it need not address Defendant’s primary
jurisdiction argument because, regardless of whether and how the FDA does
decide to take up the definition of the term “natural,” which it has so far declined
to do, the particular claims in this case are simply not plausible. See, e.g.,
Lockwood v. Conagra Foods, Inc., 597 F. Supp. 2d 1028, 1035 (N.D. Cal. 2009)
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(noting that determination of this issue “is not a technical area in which the FDA
has greater technical expertise than the courts—every day courts decide whether
conduct is misleading”).
C.

Failure to State a Claim
1.

Rule 12(b)(6) Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may
move the Court to dismiss a claim if, on the pleadings, a party has failed to state
a claim upon which relief may be granted. In reviewing a motion to dismiss, the
Court takes all facts alleged in the complaint to be true. Zutz v. Nelson, 601 F.3d
842, 848 (8th Cir. 2010).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Thus, although a complaint need not include
detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.
Id. (citations omitted).
A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a
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defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
2.

Basis for Plaintiffs’ Claims

Here, Plaintiffs claim that glyphosate is a synthetic chemical and that a
reasonable consumer would not expect a product labeled as being “Made with
100% Natural Whole Grain Oats” to contain a synthetic biocide. (Compl. ¶ 84.)
Plaintiffs claim that Defendant breached its promise that its Products would
contain “100% Natural Whole Grain Oats,” because the Products contained trace
amounts of glyphosate. (Id. ¶¶ 169-71.) Each of Plaintiffs’ claims depends on the
statement “Made with 100% Natural Whole Grain Oats” being misleading, false,
deceptive, fraudulent, or misrepresentative solely because trace amounts of
glyphosate are found in the Products.
The Court concludes that Plaintiffs have failed to plausibly allege that the
statement “Made with 100% Natural Whole Grain Oats” means, or could be
interpreted by a reasonable consumer to mean, that there is no trace glyphosate
in Nature Valley Products. It is implausible that a reasonable consumer would
believe that a product labelled as having one ingredient – oats – that is “100%
Natural” could not contain a trace amount of glyphosate that is far below the
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amount permitted for organic products. The Court further concludes Plaintiffs
fail to state a claim because Defendant did not represent or warrant that Nature
Valley Products would be free from trace glyphosate.
3.

Belief of a Reasonable Consumer and Comparison to
Organic Products

While the question of whether a consumer’s belief is “reasonable” is often
a fact question to be determined at a later stage, Supreme Court precedent, such
as Iqbal, requires federal courts to assess, at the motion to dismiss stage, whether
a complaint alleges sufficient facts to state a claim for relief that is plausible on its
face. Thus,
[g]enerally the question whether a business practice is deceptive is
an issue of fact not appropriate for decision on a motion dismiss.
However, dismissal of such claims is appropriate where the plaintiff
fails to show the likelihood that a reasonable consumer would be
deceived.
Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380,
at *5 (N.D. Cal. Jan. 10, 2011) (granting motion to dismiss when, “[h]aving
reviewed the product packaging itself, the court concludes as a matter of law that
a reasonable consumer would not likely be deceived by the Drumsticks
packaging to believe that the products are made of the original ingredients of the
1928 recipe, as Plaintiff alleges”), aff’d, 475 F. App’x 113 (9th Cir. 2012). See also
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Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 756-57 (N.D. Ill. 2015) (dismissing as
implausible claim that “‘no refined sugars’ [] mean[t] that the Vanilla Blueberry
Clusters contained only ‘naturally occurring’ sugars that had not been refined at
all” because “sugar cane in its natural state is a grass that contains jointed stalks
resembling bamboo”); Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 978 (C.D.
Cal. 2013) (finding claim based on “All Natural” label on pasta to be implausible
and noting that “the reasonable consumer is aware that Buitoni Pastas are not
springing fully-formed from Ravioli trees and Tortellini bushes”) (citation
omitted).
The Court concludes that it is not plausible to allege that the statement
“Made with 100% Natural Whole Grain Oats” means that there is no trace
glyphosate in Nature Valley Products or that a reasonable consumer would so
interpret the label. It would be nearly impossible to produce a processed food
with no trace of any synthetic molecule.
The representation “Made with 100% Natural Whole Grain Oats” cannot
plausibly be interpreted to be more restrictive with regard to synthetic residue
than the standard for labelling a product as “organic” under federal law. See,
e.g., Pelayo, 989 F. Supp. 2d at 979 (“Consumers generally conflate the notions of

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‘natural’ and ‘organic,’ or hold products labeled ‘organic’ to a higher standard
than products labeled “natural,” and, thus, it is implausible that a reasonable
consumer would believe ingredients allowed in a product labeled ‘organic,’ such
as the Challenged Ingredients, would not be allowed in a product labeled ‘all
natural.’”). Cf. Buetow v. A.L.S. Enters., Inc., 650 F.3d 1178, 1186 (8th Cir. 2011)
(“We doubt there are many hunters so scientifically unsophisticated as to believe
that any product can ‘eliminate’ every molecule of human odor. . . . [A] district
court errs when it ignores the principle that text must yield to context and
make[s] a fortress out of the dictionary.”) (citation omitted).
Under federal regulations, foods bearing the “organic” label are allowed to
contain chemical pesticide residue, so long as it is less than 5 percent of EPA
tolerance for the detected residue. See 65 Fed. Reg. 80548-01, 80629 (Dec. 21,
2000). Here, the Products satisfy the federal standard for organic labelling with
regard to the small amount of glyphosate found in the Products. Thus, it is not
plausible that a product can satisfy the organic standard for biocides yet its label
can be deemed be false for stating that it is natural because it contains trace
amount of biocides. Satisfaction of the organic standard might not be relevant
for other types of “natural” claims. However, organic labelling rules are aimed

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at the exact issue in this case – the amount of pesticides and biocides applied to
crops and found in products.
4.

Breach of Express Warranty

The Court further concludes Plaintiffs failed to plausibly allege a breach of
warranty because Defendant did not warrant that Nature Valley Products would
be free from trace glyphosate. The product packaging states “Made with 100%
Natural Whole Grain Oats.” And there is no dispute that the Products were
made with whole grain oats that, themselves, are “100% Natural.” Even if the
glyphosate traces are present on the oats, there is no allegation that the oats,
themselves, are not natural. The packaging does not state that the Product, as a
whole, is “100% Natural.” See Chin, 2013 WL 2420455, at *7 (holding that
express warranty language must be read in the context of the entire package). It
is not plausible that a representation that one ingredient in a product – in this
case, oats – is “100% Natural” means that the product as a whole does not
contain traces of synthetic ingredients. Plaintiffs cannot claim a breach or
misrepresentation based on a warranty that Defendant never gave.

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Because the Court dismisses Plaintiffs’ Complaint for failure to state a
claim, the Court need not reach Defendant’s alternative arguments regarding
Rule 9(b), presuit notice, or privity.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. Plaintiffs’ Request for Leave to File Supplemental Authority
[Docket No. 72] is GRANTED.
2. Defendant General Mills, Inc.’s Motion to Dismiss the
Consolidated Class Action Complaint [Docket No. 54] is
GRANTED and this matter is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: July 12, 2017

s/ Michael J. Davis
Michael J. Davis
United States District Court

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