May 29, 2020
The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a Florida federal district judge’s dismissal of a putative class representative’s complaint alleging that she and other purchasers of General Mills’ Cheerios cereals were misled by General Mills’ failure to disclose that Cheerios might contain the herbicide glyphosate. Doss v. General Mills, Inc., No. 19-12714 (11th Cir. May 20, 2020). Glyphosate, the active ingredient in Roundup®, has been classified by the International Agency for Research on Cancer (IARC) as a “probable human carcinogen,” although most other governmental regulatory agencies worldwide, including the United States Environmental Protection Agency, disagree with that classification. Glyphosate has been in the news over the last several years due to several multi-million (and in one case multi-billion) dollar personal injury verdicts against Monsanto in lawsuits by plaintiffs alleging that they developed cancer as a result of their exposure to Roundup®.
In Doss, the plaintiff alleged that she and other consumers of Original and Honey Nut Cheerios were deceived into buying those cereals by General Mills’ claims that they were “packed with nutrients” and “wholesome.” Op. at 5. She alleged that General Mills failed to disclose the presence of glyphosate in the cereals and that “ultra low levels” of glyphosate, perhaps as low as 160 parts per billion (ppb), could be “hazardous to human health” based on a “health benchmark” set by an advocacy group. She further claimed that an analysis showed glyphosate levels in some boxes of Cheerios ranging from 470 to 1,125 ppb. Based on these allegations, plaintiff alleged that she and other consumers had been deceived, because if they had known about the glyphosate levels in the cereals, they never would have purchased them. Op. at 3. The complaint alleged claims under Florida’s Deceptive and Unfair Trade Practices Act, and for breach of warranty, breach of the implied warranty of merchantability, and unjust enrichment.
In a per curiam decision, the Eleventh Circuit affirmed the district court on the same ground that led the district court to dismiss the complaint: the plaintiff failed to meet the threshold requirement of alleging an “injury-in-fact” for purposes of meeting the standing requirement of Article III of the U.S. Constitution. Although the plaintiff said she would not have purchased Cheerios if she had been aware that they contained glyphosate, the court found that not only had she failed to allege that the Cheerios she bought contained harmful level of glyphosate, but also that she was unable to allege that they contained any glyphosate at all. Op. at 6. Because her theory of liability was that the presence of glyphosate made the Cheerios unsafe to eat and therefore valueless, the lack of any allegation that the Cheerios she purchased contained glyphosate rendered her claim “conjectural and hypothetical” and required dismissal. Op. at 6.
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