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Speculative Claims Sink Cheerios Glyphosate Suit

The active ingredient in popular weed killers, glyphosate, has gotten bad press lately.  Thousands of plaintiffs have alleged that exposure to it caused their cancers.  Jurors have responded by invoking punitive damages and awarding billion dollar verdicts.  These headline-grabbing results have been subsequently reduced by court on legal grounds.

Some advocacy groups are claiming that the chemical’s presence extends beyond weed killers. For example, the Environmental Working Group recently conducted a study that purports to show traces of the chemical present in many Cheerios and Quaker brand products.  To no one’s surprise, civil lawsuits followed.

class action complaint was recently filed here in the Southern District of Florida alleging that Cheerios and Honey Nut Cheerios contained undisclosed levels of glyphosate.  On June 14, the Court dismissed the case for lack of standing under the Supreme Court’s seminal decision in Spokeo v. Robins.

Spokeo teaches that a plaintiff must allege a particularized and concrete injury.  Speculative, immaterial injuries will fail.  Judge Scola determined that the plaintiff in Cheerios failed to meet this concrete injury requirement.  While the complaint alleged, “even ultra-low levels of glyphosate may be harmful to human health,” (emphasis added), there was no allegation as to what those potentially harmful levels are.  Additionally, the plaintiff never alleged that she was harmed from eating the cereal.  Thus, her injury was only an economic one—“buying a product under allegedly false pretenses.”  Here as well, the plaintiff’s pleading fell short.  While some samples of Cheerios had tested positive for glyphosate, the plaintiff pleads that the cereal she purchased “contained or could contain glyphosate.”  As Judge Scola determined,

put simply, the plaintiff has failed to allege an injury in fact based on her purchase of Cheerios and she therefore lacks standing.”

Cheerios represents yet another example of the formidable hurdle standing can come to represent for plaintiffs post-Spokeo. Courts continue to place alleged injuries under a microscope, and will decline to allow cases to proceed on theoretical allegations not supported by concrete and particularized assertions of harm.

© 2019 Bilzin Sumberg Baena Price & Axelrod LLP


About this Author

Luis M. Reyes Litigation Lawyer Bilzin Sumberg Law Firm

Luis Reyes is an Associate in Bilzin Sumberg's Litigation Group. During his time at the University of Miami, Luis was elected to serve as both the Senior Articles Editor for the University of Miami Law Review, and as the Cristol-Kahn-Paskay Cup Vice President for the University of Miami Moot Court Board. Luis was a finalist at the Gaubatz Moot Court competition, winning awards for top overall competitor and top oral advocate. Most recently, Luis worked as judicial intern for the Honorable Paul C. Huck in the Southern District of Florida. 

Lori Lustrin, Commercial Litigation Attorney, Bilzin Sumberg Law Firm

Lori is a general commercial litigator who focuses on complex class-action and plaintiff opt-out antitrust litigation in federal court. In addition to antitrust work, her class action experience includes defending clients in the consumer products, homebuilding, real estate investment, and food and beverage industries.

Lori has also taken an interest in the emerging area of healthcare antitrust litigation and she has authored several articles on the subject. In addition to her varied federal court work, Lori has substantial experience in complex business litigation throughout the country, and has litigated cases involving intellectual property disputes, landlord-tenant disputes, land use disputes, bankruptcy issues, employment disputes, professional malpractice actions, unfair and deceptive trade practices issues, fraud, defamation, and products liability. Lori also has significant experience in alternative dispute resolution proceedings, including international arbitrations.

Melissa Pallet-Vasquez, Litigation Attorney, Bilzen Sumberg Law Firm

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...