honey producers have statutory standing to challenge Bayer's claims to direct purchasers that herbicides were safe

Coy’s Honey Farm, Inc. v. Bayer Corp., MDL No.:1:18-md-02820-SNLJ, No. 1:21-CV-089-SNLJ, 2025 WL 901264 (E.D. Mo. Mar. 25, 2025)

Coy’s s a beekeeping and honey-producing operation. It alleged that dicamba-based herbicide products, including those produced by defendants, moved away from the targeted dicamba-tolerant plants and damaged non-tolerant vegetation surrounding plaintiff’s beekeeping operation. This allegedly resulted in reduced honey production and loss of bees. The court allows Lanham Act false advertising claims (and others) to proceed. I think the proximate cause question is interesting, but the other claims may have obscured the specific proximate cause question with respect to false advertising, since there was a material issue of fact on proximate causation of damage to the bees/honey.

The Lanham Act claim is based on defendants’ alleged false representations that their dicamba products were safe for the type of use that allegedly let them to volatize and spread to surrounding areas after being applied to the intended target of soybean and cotton fields. Misled purchasers then used the dicamba as directed, which “allegedly resulted in the destruction of a great deal of plant habitat for the honeybees, and, in turn, caused the bees to produce less honey. Thence, plaintiff profited less.” There was a fact issue on whether that had happened.

But was there Lanham Act standing? Lexmark held that a plaintiff must “allege an injury to a commercial interest in reputation or sales proximately caused by the defendant’s misrepresentations.” That is, a Lanham Act plaintiff must be a commercial actor suffering commercial injuries instead of being a “consumer who is hoodwinked into purchasing a disappointing product.” “Here, there is no question that plaintiff is a commercial actor, and plaintiff has alleged a loss in sales due to defendants’ misrepresentations.” The “due to” is doing a lot of work there—I’m open to the argument that the honey producers are at least as distant from the false advertising as the landlord of a business that suffers damage from false advertising. But proximate cause is, of course, a legal rather than factual conclusion.