On June 22, 2016, the Organic Consumers Association (“OCA”) filed suit against Post Foods LLC and Post Holdings (“Post”) in Washington, D.C. The complaint seeks injunctive relief and economic damages. At the center of OCA’s allegations are Post’s claims that its Shredded Wheat products are “100% Natural Whole Grain Wheat” and a “Natural Source of Fiber” in advertisements and product labels.
Such claims, according to OCA’s complaint, are deceptive and misleading because the Shredded Wheat products contain glyphosate, which is an herbicide. OCA alleges that “Post is attempting to capture the growing market of consumers who are aware of the health risks and environmental damage caused by chemical-laden foods . . . Post knows that consumers demand—and are willing to pay for –foods that are natural and whole, and that omit chemicals.”
This case now joins the new and increasingly complex natural claims cases in which the “unnatural” chemical at issue is found in the product at a level significantly below the Environmental Protection Agency’s legally permitted threshold. Here, the glyphosate level is 0.18 parts per million, while the EPA’s threshold is 30 parts per million. OCA’s argument, however, is that reasonable consumers would not expect such a chemical to be present at any level in products that make “100% natural claims.” Still, it remains up to the court to determine whether such a level of glyphosate is significant for these purposes.
On August 12, 2016, Post filed a notice of removal to remove the action to federal court in the District of Columbia. Natural claims litigation is continuing to grow, and all developments in cases like this, which involve well-known products, have the potential impact the food advertising and labeling world. Stay tuned.