Is a Granola Bar "Natural" If There's a Pesticide in It?
The "natural" claims haven't vanished; they've just become less conspicuous—and as the claims have evolved, so has the litigation over whether they're deceptive. New lawsuits filed Wednesday target what they say are small amounts of the world's most popular pesticide in granola bars ostensibly "made with 100% natural whole grain oats."
In 2014, General Mills settled a class-action lawsuit and agreed not to label its Nature Valley granola bars "100% natural" if they contained high-fructose corn syrup, maltodextrin, or several other highly processed ingredients. The phrase soon disappeared from its spot on the box right under the brand name. Yet it has reappeared—in a different place, outside the scope of that settlement—on many Nature Valley products. The Sweet & Salty Nut granola bars, for example, come with text that says they are "made with 100% natural whole grain oats."
According to lawsuits filed Wednesday in New York, California, Minnesota, and Washington, D.C., that claim is deceptive.
"The oat products at issue are not 'made with 100% natural whole grain oats,'" the D.C. complaint alleges. The products contain, it says, small amounts of the common pesticide glyphosate. At 0.45 parts per million, the level it says they contain is well below the Environmental Protection Agency's 30 ppm limit. But the suit contends that's still higher than should be allowed because the pesticide likely comes from the "100% natural" oats.
The World Health Organization last year dubbed glyphosate "probably carcinogenic," but in May, a report by the WHO and the United Nations concluded it "is unlikely to be genotoxic at anticipated dietary exposures." In other words, glyphosate can hurt you, but not from how you're probably consuming it.
Some of the same attorneys behind Wednesday's suits brought a similar action in May against PepsiCo over traces of glyphosate allegedly found in Quaker oatmeal. The Quaker Oats Co. did not respond to a request for comment but told the New York Times that its oats go through a cleansing process and are safe for human consumption, and that while it didn't add glyphosate, its farmers might apply it before harvest.
The new litigation against General Mills isn't focused on glyphosate's health effects, whatever they may be. Their claim, said lead attorney Kim Richman, is much simpler—that oats can't be "100% natural" if they're grown with a synthetic pesticide, and that calling them as much misleads consumers.
General Mills declined to comment on the litigation.
Indeed, after years of litigation over whether their products are as "natural" as they advertise, many food companies have wised up and replaced the word, even as the Food and Drug Administration collects public comment on what it should mean.
"There's been a switch," said Stephen Gardner, an attorney at the Dallas-based Stanley Law Group and former director of litigation at the Center for Science in the Public Interest, the food industry watchdog group that brought the lawsuit General Mills settled in 2014. "I know because I've gone to enough conferences and spoken to the defense attorneys."
"Every lawyer on the defense side I’ve been in touch with is clearly advising their clients to avoid using this word," said Michele Simon, a public health attorney who advises natural food companies and publishes research on food industry marketing tactics. She, too, regularly attends industry conferences and listens in on the advice food manufacturers' lawyers give.
As for those Nature Valley granola bars? If they do contain glyphosate that comes from the "100% natural" oats, as the suits allege, General Mills could have a problem on its hands, said Ted C. Craig, a class-action defense attorney specializing in false advertising and mislabeling cases at the Florida firm Gray Robinson.
"My advice is 'know what's in your products,' because the risk of not knowing is higher now than ever before," he said. Producers "should be 100 percent confident that when they use terms like 'natural' that there are no synthetic ingredients added."
Glyphosate is applied on the fields, before processing, but Craig said it could be considered a synthetic ingredient.
Gardner isn't optimistic, though, that that argument will succeed in court. "Judges have not been very receptive to arguments over trace elements, but they should be," he says. "Consumers would never consider something with glyphosate a natural product."
Officially, the new litigation mostly seeks to get General Mills to remove the label and pay back customers. But unofficially, Richman wants to achieve much more.
"I’m not interested in just seeing the word 'natural' removed," he said. "Ideally," he said, the goal is "to clean up our food system."
To contact the author of this story: Deena Shanker in New York at firstname.lastname@example.org.