“Contains detectable levels of the weed-killer chemical glyphosate.”
“Contains limonene, which causes kidney toxicity and tumors, and linalool, a cockroach insecticide.”
“Contains a potent biocide and endocrine disruptor, with detrimental health effects that are still becoming known.”
These are the sorts of headline-grabbing allegations the plaintiffs’ bar has recently relied upon in claiming that products advertised or positioned as “natural” are deceptively marketed. At first blush, the presence of allegedly dangerous ingredients in foods, cosmetics, and other consumer products might seem like the basis of a strong false advertising case—especially when those substances are undisclosed. How could a company so deceive the public by promising a “good-for-you” product that contains such “bad” ingredients?
In fact, these sensational allegations are frequently nothing more than sensationalism. The supposedly “harmful” ingredients are almost invariably proven to be safe in the form or concentration present in the product. But allegations like these—irrespective of their scientific merit—still draw eyeballs and can cause manufacturers significant reputational harm.
In a prominent recent example, LaCroix sparkling water was hit with a putative class action alleging that its water, which is marketed as “all natural,” contains cockroach poison and other synthetic chemicals. Immediately, headlines shouted that LaCroix could be poisoning consumers. LaCroix sales plummeted. The company reported net revenues of just $24.8 million in the first quarter of 2019, compared to $41.1 million for the same quarter in 2018. LaCroix’s CEO issued a statement blaming the drop on “injustice”—an apparent reference to the ongoing lawsuit. Indeed, the suit’s merit appears questionable at best: As bloggers at FiveThirtyEight noted, “limonene, linalool propionate and linalool are common plant chemicals” that are naturally “found in many fruits” and give them their characteristic flavor. LaCroix did not move to dismiss the suit, however, and it remains pending.
But last week, the company that makes Rachel Ray’s “Nutrish” dog food was rewarded for taking a stand against a similar challenge at the pleadings stage. It secured dismissal of a putative class action claiming Nutrish is falsely labeled as “natural” because it contains unspecified levels of the “pesticide” glyphosate. Parks v. Ainsworth Pet Nutrition, LLC, Case No. 1:18-cv-06936, 2019 U.S. Dist. LEXIS 68011 (S.D.N.Y. April 18, 2019). According to the complaint, although the product contained only “trace amounts” of glyphosate, its presence at “any level” rendered the “natural” claim untrue. The court disagreed as a matter of law, holding that no reasonable consumer could agree with the plaintiff’s interpretation of “natural” or find the “presence of negligible amounts” of glyphosate to be material. And although the dismissal was without prejudice, the court provided a helpful blueprint for similarly situated defendants to gut these types of challenges at the pleadings stage.
What does a “reasonable consumer” think?
The plaintiff in the Nutrish case alleged that he relied on the representation that the dog food was “natural” when he purchased it, and said he was willing to pay more for it because he expected it to be “free of pesticides and other unnatural chemicals.” Parks, 2019 U.S. Dist. LEXIS 68011, at *2.
Judge Louis L. Stanton of the Southern District of New York found that the plaintiff’s...
