Health Law Daily Orange juice with trace amounts of herbicide not misleading when labeled ‘natural’
Tuesday, December 11, 2018

Orange juice with trace amounts of herbicide not misleading when labeled ‘natural’

By Jeffrey H. Brochin, J.D.

A Florida orange juice manufacturer did not violate New York’s deceptive practices act when it labeled its orange juice as ‘natural’, because it was not plausible to allege that a reasonable consumer would interpret the brand label "Florida’s Natural" as meaning that the product contained no traces of glyphosate, a common herbicide, a federal district court in New York has ruled (Axon v. Citrus World, Inc., December, 2018, Ross, A.).

Alleged weed killer in orange juice. A New York orange juice consumer filed a putative class action complaint against Florida’s Natural Growers, Inc. and its parent company, Citrus World, Inc. who market a variety of orange juice products under the brand "Florida’s Natural" which, she alleged, contain trace amounts of glyphosate, an herbicide used to kill weeds. She alleged that the use of the term "natural" in the brand name was deceptive because glyphosate is not a natural ingredient. She filed claims under New York’s consumer protection statute on behalf of herself and other New York purchasers, and also brought putative common law class claims under the laws of all states on behalf of herself and a putative nationwide class of purchasers. The manufacturer filed motions to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim, pursuant to Rule 12(b)(6). Because the complaint failed to assert a plausible claim, the motion to dismiss under Rule 12(b)(6) was granted.

‘Likely to mislead’ standard. Under New York state law, deceptive acts or practices and false advertising are unlawful in the conduct of any business, trade or commerce. To survive a motion to dismiss claims brought pursuant to the statutes, the consumer needed to allege that the deceptive practice included statements that were "likely to mislead a reasonable consumer acting reasonably under the circumstances." She needed to do more than allege that a label might conceivably be misunderstood by some few consumers, but rather plausibly allege "that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."

No operative FDA guidance. The court noted that the FDA has not promulgated a regulation governing the use of the term "natural" on food labeling, despite the fact that in 2015, the agency 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. And, while it has not yet defined the term "natural," it does have a longstanding policy regarding the use of the term on food labels, including an interpretation that it means that "nothing artificial or synthetic has been added to a food that would not normally be expected to be in the food." However, that policy was not intended to address food production methods, such as the use of genetic engineering or the use of pesticides.

NLEA of 1990. The court also examined the federal Food, Drug and Cosmetic Act (FDC Act), which prohibits the misbranding of food and gives the FDA the authority to oversee the safety and labeling of food, and, the 1990 amendment to the Act--the Nutrition Labeling and Education Act of 1990 (NLEA)—which clarified and strengthened the FDA’s legal authority to require nutrition labeling on foods, and established the circumstances under which claims may be made about nutrients in foods. However, the court concluded that although the NLEA preempts state laws that impose labeling requirements that are "not identical" to the requirements of the FDC Act, that Act does not require food manufacturers to disclose the presence of glyphosate on their food labels.

Furthermore, the FDA allows trace amounts of herbicides to be present in foods in specified amounts, known as tolerances, without the food being deemed unsafe or adulterated. For citrus fruit, the allowed tolerance level for glyphosate is 0.50 parts per million, and it was undisputed that the levels of glyphosate alleged in the complaint fell below that tolerance level.

Claims not preempted. Although the court found that the consumer’s claims were not preempted under either the theory of express preemption nor conflict preemption, and therefore denied the manufacturer’s motion to dismiss based on lack of standing, the court granted the motion to dismiss for failure to state a claim based on their conclusion that it was not plausible to allege that a reasonable consumer would interpret the brand label "Florida’s Natural" as meaning that the product contains no traces of glyphosate. Accordingly, the state law claims were dismissed.

The case is No. 1:18-cv-04162-ARR-RML.

Attorneys: Bradley Forrest Silverman (Finkelstein Blankinship Frei-Pearson & Garber, LLP) for Alexandra Axon. Daniel H. Coultoff (Latham, Shuker, Eden & Beaudine, LLP) for Florida's Natural Growers, Inc. and Citrus World, Inc.

Companies: Florida's Natural Growers, Inc.; Citrus World, Inc.

MainStory: TopStory CaseDecisions FDCActNews FoodNews FoodStandardsNews LabelingNews PreemptionNews NewYorkNews

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