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In re General Mills Glyphosate Litigation

United States District Court, D. Minnesota

July 12, 2017

IN RE GENERAL MILLS GLYPHOSATE LITIGATION,

          Brian C. Gudmundson and Bryce D. Riddle, Zimmerman Reed LLP; Kim E. Richman, Richman Law Group; Beth E. Terrell and Adrienne D. McEntee, Terrell Marshall Law Group PLLC; Lori G. Feldman and Courtney E. Maccarone, Levi & Korsinsky LLP; Edward A. Wallace, Amy E. Keller, and Adam M. Prom, Wexler Wallace LLP; Stephen R. Basser, Barrack, Rodos & Bacine; and John G. Emerson, Emerson Scott, LLP; Counsel for Plaintiffs and the Putative Class.

          Jerry W. Blackwell, Benjamin W. Hulse, and Emily A. Ambrose, Blackwell Burke P.A.; David T. Biderman and Charles C. Sipos, Perkins Coie LLP; Counsel for Defendant General Mills, Inc.

          MEMORANDUM OF LAW & ORDER

          Michael J. Davis JUDGE

         I. INTRODUCTION

         This matter is before the Court on Defendant General Mills, Inc.'s Motion to Dismiss the Consolidated Class Action Complaint. [Docket No. 54] The Court heard oral argument on May 30, 2017. Because Plaintiffs fail to assert a plausible claim, the Court grants the motion to dismiss.

         II. BACKGROUND

         A. Factual Background

         According to Plaintiffs' Complaint:

         Defendant General Mills, Inc. (“General Mills” or “Defendant”) is a Delaware corporation headquartered in Minnesota. (Consolidated Class Action Complaint (“Compl.”) ¶ 30.) Defendant manufactures, markets, sells and distributes oat-based food products under the trademark Nature Valley. (Id. ¶ 31.) The products at issue in this lawsuit are 23 flavors of Nature Valley products in 8 categories: Nature Valley crunchy granola bars in at least 6 flavors, Trail Mix chewy granola bars in at least 2 flavors, Sweet & Salty granola bars in at least 2 flavors, Breakfast Biscuits in at least 3 flavors, Biscuits in at least 2 flavors, Oatmeal Squares in at least 4 flavors, Oatmeal Bars in at least 2 flavors, and Oatmeal Bistro Cups in at least 2 flavors (collectively, “Nature Valley Products” or “Products”). (Id. ¶ 5.)

         The central allegation in the Complaint is that Defendant's Nature Valley Products are labelled as “Made with 100% Natural Whole Grain Oats, ” and this claim is misleading, false, and deceptive because Nature Valley Products contain trace amounts of the chemical glyphosate, an herbicide and desiccant, which is commonly sprayed on oat crops to dry them. (Compl. ¶¶ 1-2, 13, 70, 73.) An independent laboratory has reported that Nature Valley Products contain 0.45 parts per million of glyphosate. (Id. ¶ 13.) Plaintiffs claim that “the oats are most likely the source” of the trace amounts of glyphosate found in the Nature Valley Products, but “only General Mills knows . . . what would account for the presence of glyphosate in Nature Valley.” (Id. ¶¶ 2 n.1, 89.)

         Glyphosate was invented by Monsanto and marketed as a biocide under the name Roundup. (Compl. ¶ 11.) Farmers apply glyphosate to oats as a drying agent before harvest in order to increase the oat harvest, which is not a “natural” method of growing or harvesting oats. (Id. ¶ 83.) Plaintiffs claim that glyphosate is not “natural, ” but rather is an “unnatural” “synthetic biocide.” (Id. ¶¶ 10, 12.) It is created by artificially replacing one of the hydrogen atoms in the amino acid glycine with a phosphonomethyl group. (Id. ¶ 80.)

         Plaintiffs are Mary Wolosyzn, an Illinois resident; Edward Salamanca, a California resident; Nesha Ritchie, a California resident; and Yesenia Nuez, a New York resident. (Compl. ¶¶ 32-35.) All four Plaintiffs claim that they saw, relied upon, and reasonably believed Defendant's representation on the product box that Nature Valley Products are “Made with 100% Natural Whole Grain Oats.” (Compl. ¶ 36.) They each purchased particular flavors and varieties of Nature Valley Products on several occasions and would not have done so if they had known that the Products contained glyphosate. (Id. ¶¶ 32-35, 39.)

         B. Procedural History

         On December 8, 2016, the Court granted a motion to consolidate multiple glyphosate cases brought against Defendant General Mills. [Docket No. 43] On January 9, 2017, Plaintiffs Wolosyzn, Salamanca, Ritchie, and Nuez filed a Consolidated Class Action Complaint against General Mills. [Docket No. 47]

         The Consolidated Class Action Complaint asserts: Count 1: Violation of the Minnesota Prevention of Consumer Fraud Act, Minn. Stat. § 325F.69; Count 2: Violation of the Minnesota Unlawful Trade Practices Act, Minn. Stat. § 325D.13; Count 3: Violation of Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. § 325D.44; Count 4: Breach of Express Warranty; Count 5: Unjust Enrichment; Count 6: Violation of the Illinois Consumer Fraud and Deceptive Business Act, 815 ILSC 505/1, et seq.; Count 7: Violations of California's Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq.; Count 8: Violations of California's False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq.; Count 9: Violations of California's Unfair Competition Law, Cal Bus. & Prof. Code § 17200, et seq.; Count 10: Violation of the New York General Business Law § 349; and Count 11: Violation of the New York General Business Law § 350.

         The Consolidated Class Action Complaint seeks certification of a national class of individuals who purchased Nature Valley Products during the Class Period. (Compl. ¶ 127.) It also seeks certification of state classes for California, Illinois, and New York residents who purchased Nature Valley Products within their respective states. (Id. ¶ 128.) Plaintiffs seek declaratory relief, injunctive relief, restitution, disgorgement, statutory and monetary damages, and a constructive trust. (Id. at pp. 53-54.)

         Defendant has now brought a motion to dismiss Plaintiffs' Complaint based on lack of standing, the primary jurisdiction doctrine, failure to state a claim upon which relief may be granted, and failure to plead fraud with particularity. Defendant has also filed a motion to strike certain allegations in the Complaint regarding the human health risks posed by trace amounts of glyphosate in packaged food. The Court grants Defendant's motion to dismiss based on failure to state a claim upon which relief can be granted. In light of that dismissal, the Court denies the motion to strike as moot.

         III. DISCUSSION

         A. Standing

         1. ...


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