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General Mills Beats Appeal Over Weedkiller Residue in Cheerios

May 21, 2020, 2:45 PM

A would-be class suit alleging General Mills Inc. failed to disclose the presence of glyphosate residue in Cheerios can’t proceed because the plaintiff didn’t show she actually bought any cereal with the Roundup chemical in it, the Eleventh Circuit said Wednesday.

Mourina Doss alleged merely a “conjectural or hypothetical” injury, the U.S. Court of Appeals for the Eleventh Circuit said in an unpublished, per curiam opinion.

Similar appeals over the chemical’s presence in other foods are pending before the Second Circuit, and a class of consumers was recently certified in another glyphosate case.

Glyphosate, the main ingredient in Roundup, is often sprayed on oats before they are harvested, Doss said.

Doss alleged that testing by the Environmental Working Group has shown trace amounts of the weedkiller in samples of Original and Honey Nut Cheerios.

She alleged even ultra-low glyphosate levels may be harmful to human health, and said she and others suffered an economic loss solely by purchasing Cheerios they wouldn’t have bought had they known about the glyphosate.

Doss appears to be advancing a theory that the presence of glyphosate renders Cheerios unsafe to eat, the court said.

But she didn’t allege she purchased any boxes of Cheerios that contained any glyphosate, much less a level of glyphosate that is so harmful the Cheerios are “presumptively unsafe” and therefore worthless, it said.

Other foods have also drawn marketing suits based on weedkiller residue.

California Sue Bee honey consumers recently convinced a federal trial court to grant class status in their suit alleging the Sioux Honey Association Cooperative deceptively markets its honey products as “pure” when they contained traces of the weedkiller glyphosate.

But a federal court in New York last year threw out a suit alleging Florida’s Natural orange juice was misleadingly called “natural” when it contained glyphosate traces. The dismissal has been appealed to the Second Circuit.

And a pet owner also has an appeal pending before the the Second Circuit over the dismissal of his similar suit alleging Rachael Ray’s pet food company, Ainsworth Pet Nutrition LLC, deceptively labeled “natural” dog food.

The Schlesinger Law Offices PA represented Doss. Carlton Fields PA and Perkins Coie LLP represented General Mills.

Judges Charles R. Wilson, Beverly B. Martin, and R. Lanier Anderson III served on the panel.

The case is Doss v. General Mills, Inc., 11th Cir., No. 19-12714, unpublished 5/20/20.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com