glyphosate traces can render honey not "pure" for consumer protection claim

Scholder v. Sioux Honey Ass’n Coop., CV 16-5369 (GRB), 2022 WL 125742 (E.D.N.Y. Jan. 13, 2022)

Despite the failure of most “vanilla” claims, a metaphorically consumer vanilla false advertising claim can survive the motion to dismiss stage, as this case shows (though claims for breach of warranty and for injunctive relief get tossed, the latter for lack of standing).

Scholder alleged that defendant violated NY law because it puts “Pure” or “100% Pure” on the SueBee product labels, but the honey contains glyphosate, a synthetic chemical and herbicide that is potentially carcinogenic. Scholder alleged that “[c]onsumers reasonably believe that a product labeled ‘[P]ure’ or ‘100% [P]ure’ does not contain synthetic substances, such as artificial biocides,” and that had he known at the time that SueBee honey contained glyphosate, he would not have considered the honey to be pure and would not have paid a premium for the product.

Defendant argued that label couldn’t be materially misleading to a reasonable consumer because “any trace amounts of glyphosate in the honey was the result of the natural process of bees interacting with agriculture and not its production process, and thus its honey was in fact ‘Pure.’” At the pleading stage, though, it wasn’t clear whether a reasonable consumer would understand the terms “Pure” or “100% Pure” to mean that trace amounts of glyphosate could end up in honey from the bees foraging process.

As the Second Circuit previously held: “[u]nlike ‘natural,’ the words ‘pure’ and ‘100% natural’ indicate the absolute absence of contaminants.” Unlike the case where a term (“natural”) occurs only in the brand name and not elsewhere on the package, the product label here described the honey as “100% Pure Unfiltered Honey” on a stand-alone basis.

Further, the complaint alleged that the targeted consumers would care, because they “value pure foods,” and alleged the existence of specific statements/research about the potential dangers of glyphosate even at low levels. This made the allegations that reasonable consumers would care plausible.

Warranty claims failed for want of pre-suit notice, as required in NY, but unjust enrichment survived.