ORGANIC CONSUMERS ASSOCIATION, еt al., Plaintiffs, v. GENERAL MILLS, INC., Defendant.
Civil Action No. 1:16-cv-1921-ESH
United States District Court, District of Columbia.
Signed 02/22/2017
226
Barak Cohen, John F. Henault, Jr., Perkins Coie LLP, Washington, DC, Charles Sipos, Joseph M. McMillan, Perkins Coie, LLP, Seattle, WA, for Defendant.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, United States District Judge
Plaintiffs Organic Consumers Association, Moms Across America, and Beyond Pesticides (“Plaintiffs“) bring this action against defendant General Mills, Inc. (“General Mills“), alleging that defendant‘s labeling and advertising of its “Nature Valley” granola products as “naturаl,” “healthy,” “100% Natural,” or “Made with 100% Natural Whole Grain Oats” violates the District of Columbia Consumer Protection Procedures Act,
BACKGROUND
Defendant General Mills produces, markets and sells a line of granola products under the name “Nature Valley” (hereinafter “Nature Valley Products“).1 The Nature Valley Products are labeled and/or promoted as “Made with 100% Natural Whole Grain Oats,” “100% Natural,” “natural,” and/or “healthy.” (Compl. ¶¶ 3, 137.)
Plaintiffs take issue with these descriptors because Nature Valley Products contain glyphosate.2 (Compl. ¶¶ 7, 9.) Glyphosatе is a chemical pesticide that is marketed under the trade name “Roundup.” (Compl. ¶ 82.) It is routinely sprayed on a host of crops, including oats, as a desiccant to dry them out for faster harvesting and better yields. (Compl. ¶¶ 84-85.) It is also, according to plaintiffs, potentially damaging to human health in a variety of ways. (Compl. ¶¶ 88-97, 103.) Accordingly, the complaint alleges, glyphosate is neither “natural” nor “healthy” (Compl. ¶¶ 79, 100), and it is false, deceptive and misleading to dеscribe Nature Valley Products containing glyphosate as such. (See, e.g., Compl. ¶¶ 4, 14, 79, 109.)
Plaintiffs’ complaint includes one claim under the DCCPPA: that General Mills’ labeling and advertising of Nature Valley Products containing glyphosate as “natural,” “healthy,” “100% Natural,” or “Made with 100% Natural Whole Grain Oats” violates the statute because it “misrepresents, tends to mislead, and omits facts regarding the source, characteristics, standard, quality, and grade” of these products.3 (Compl. ¶¶ 137-38). They seek declaratory and injunctive relief. (Compl. at 25.)
Pursuant to
ANALYSIS
I. STANDARD OF REVIEW
A party may remove a case from state to federal court only when the case could have been filed in federal court originally. See
II. FEDERAL QUESTION JURISDICTION
Federal courts have “federal question jurisdiction” over matters “arising under the Constitution, laws, or treaties of the United States.” See
Where a complaint affirmatively alleges only state law claims, federal question jurisdiction rarely exists. One situation, seldom encountered, is “[w]hen a federal statute wholly displaces the state-law cause of action,” meaning that “the federal statutes at issue provided the exclusive cause of action” and “set forth procedures and remedies governing that cause of action.” Beneficial Nat‘l Bank, 539 U.S. at 8. The other possibility is when a state-law claim “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng‘g & Mfg., 545 U.S. 308, 313 (2005)5; see also Gunn v. Minton, 568 U.S. 251,
It is a “special and small category” of cases that will belong in federal court under Grable. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700 (2006). The Supreme Court cautioned in Grable that the mere existence of a “federal issue” cannot be treated “as a password opening federal courts to any state action embracing a point of federal law.” Grable, 545 U.S. at 314. In Grable, for example, plaintiff filed suit in state court to quiet title to a piece of real property, which the IRS had seized to satisfy plaintiff‘s federal tax delinquency and then sold it to defendant. Plaintiff contended that defendant‘s title was invalid because the IRS had failed to give proper notice of its seizure of the property as defined by federal law. The Supreme Court concluded that there was federal question jurisdiction, explaining that: “[w]hether Grable was given notice within the meaning of the federal statute is thus an essential elеment of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case.” Grable, 545 U.S. at 315 (emphasis added). Similarly, in Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), the “classic example” of this type of jurisdiction, Grable, 545 U.S. at 312, the plaintiff‘s state law claim challenging a bank‘s investment in federal farm loan bonds was premised on the alleged unconstitutionality of an act of Congress. See Smith, 255 U.S. at 2016 (“no other reason is set forth . . . as a ground of objection to the proposed investment” other than the allеgation “that the securities were issued under an unconstitutional law, and hence of no validity“). In addition, it remains the case that a “federal defense, including the defense of preemption,” does not suffice to create federal question jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Becker v. Ute Indian Tribe of the Uintah & Ouray Reservation, 770 F.3d 944, 947-49 (10th Cir. 2014) (where “federal issues are merely federal defenses,” they “do not give rise to federal question jurisdiction” under Grable).
III. MOTION TO REMAND
Defendant asserts that there is federal question jurisdiction under Grable because plaintiffs’ claim “implicates” or “calls for the application of” federal regulations that pertain to (1) the safety of glyphosate; (2) food labeling requirements; and (3) definitions of the terms “healthy” and “natural.” (Resp. at 9-13.) As explained infra, plaintiffs’ claim may “implicate” these regulations, but it does not create any “federal issues” within the meaning of Grable be
A. Regulations Pertaining to the Safety of Glyphosate
Defendant‘s first Grable argument is based on federal regulations pertaining to the safety of chemical pesticides, including glyphosate.
Under federal law, the EPA Administrator may set a “tolerance level” for a pesticide chemical residue if the pesticide is determined to be “safe” at that level.
The EPA Administratоr has established tolerance levels for glyphosate residues. See
Defendant contends that plaintiffs’ claim “necessarily implicates” these regulations because in order for plaintiffs to prove that it violates the DCCPPA to describe a food containing glyphosate as “healthy,” they will have to show that any amount of glyphosate is “unsafe,” which amounts to a “direct challenge” to the federally-established tolerance level. (Resp. at 10 (the “underlying assertion” to plaintiffs’ challenge to the use of the term “healthy” is that “trace amounts of glyphosate are unsafe“)). Defendant‘s argument is not persuasive. First, even though the complaint does allege that glyphosate at any level is unsafe for human consumption (see, e.g., Compl. ¶¶ 110, 129), that allegation is not essential to plaintiffs’ challenge to the use of the term “healthy.” “Healthy” and “safe” are not synonymous. “Healthy,” in this context, means “beneficial to one‘s physical state,” while “safe” means “free from harm or risk.” Merriam-Webster Dictionary; see also
Second, even if plaintiffs’ claim required them to prove that any amount of glyphosate in or on food is unsafe, they cannot directly challenge the “validity” of the federal tolerance level. See
Accordingly, the Court concludes that plaintiffs’ claim does not implicate federal regulations pertaining to the safety of glyphosate so as to raise a federal question under Grable.
B. Regulations Pertaining to Food Labeling Requirements
Defendant‘s second Grable argument is based on federal regulations pertaining to food labeling requirements.
Under federal law, food labels are required to disclose many things to avoid being considered “misbranded” under federal law, but pesticide chemical residues are not among them. See
Defendant argues that plaintiffs’ claim will require a court to “assess the meaning and effect” of these federal regulations because the complaint alleges that “General Mills labels are misleading because they omit disclosing the presеnce and dangers of glyphosate.” (Resp. at 11.) The Court disagrees. Although the complaint includes these allegations, plaintiffs’ legal claim is that it is the undisclosed presence of glyphosate in conjunction with labels or advertisements of the products as “natural” and “healthy” that violates the DCCPPA. That claim does not require the application of existing federal disclosure regulations. Moreover, even if plaintiffs’ claim were based еntirely on defendant‘s failure to disclose the presence of glyphosate, the fact that federal regulations do not require disclosure would be a defense, not a basis for Grable jurisdiction.
Accordingly, the Court concludes that plaintiffs’ claim does not implicate federal regulations pertaining to food labeling in a manner that raises a federal question under Grable.
C. Regulations Pertaining to the Terms “Healthy” and “Natural”
Defendant‘s final Grable argument is that plaintiffs’ claim calls for the “applica
1. “Healthy”
Defendant argues that plaintiffs’ challenge to its use of the term “healthy” will require application of federal law because “the FDA‘s food labeling regulations already define and regulate the term ‘healthy’ to prevent ‘misbranding,‘” and because “the agency is currently considering whether to revise the rules governing the use of the term ‘healthy’ (including whether it can be used in a ‘false or misleading’ manner).” (Resp. at 12 (quoting
There are several problems with defendant‘s analysis. First, the regulation it cites is much narrower than the description implies. It does not generally define and regulate the meaning of the term “healthy“; rather it sets the conditions under which that term (and related terms) can be used as part of an “implied nutrient content claim” on a food label. But plaintiffs are not challenging General Mills’ use of the term “healthy” as part of an “im
(i) Describes the food or an ingredient therein in a manner that suggests that a nutrient is absent or present in a certain amount (e.g., “high in oat bran“); or
(ii) Suggests that the food, because of its nutrient content, may be useful in maintaining healthy dietаry practices and is made in association with an explicit claim or statement about a nutrient (e.g., “healthy, contains 3 grams (g) of fat“).
Second, even if there were a more direct conflict between the federal regulation and plaintiffs’ claim, the regulation would be a defense, not a basis for federal question jurisdiction under Grable.
Finally, while it is true that the FDA is now seeking comments on whether it should regulate the use of the term “healthy” outside the “nutrient content” context, the possibility of future regulation does not satisfy the Grable test for federal question jurisdiction.
2. “Natural”
Defendant argues that plaintiffs’ challenge to the use of the term “natural” will require the application of federal law because the FDA has an “informal policy” about what the term means and it is “now considering whether to revise its policy regarding the use of the term ‘natural,’ including whether it can be used where pesticides have been used in the production process.” (Resp. at 12-13 (citing 80 Fed. Reg. 69905, 69908, 2015 WL 6958210 (Nov. 12, 2015) (“Use of the Term ‘Natural’ in the Labeling of Human Food Products; Request for Information and Comments“)).) The Court disagrees.
The FDA has never “establish[ed] a definition for the term ‘natural’ when used in food labeling,” but its “longstanding policy” is “not ... to restrict the use of the term ‘natural’ except for added color, synthetic substances, and flavors,” and to interpret the term “to mean that ‘nothing artifiсial or synthetic (including all colors regardless of source) has been included in, or has been added to, the product that would not normally be expected to be there.‘” 80 Fed. Reg. 69905-01, 69906, 2015 WL 6958210 (citing 56 Fed. Reg. 60421, 60426).
It is not clear that plaintiffs’ challenge to defendant‘s use of the term “natural” actually conflicts with the FDA‘s informal policy, as the FDA admits that its policy “was not intended to address ... the use of pesticides ....” Id. at 69906; see also id. at 69908 (“If we were to revise our policy regarding the use of the term ‘naturаl’ or engage in rulemaking to establish a regulatory definition for “natural,” should certain production practices used in agriculture, for example, ... the use of pesticides ... be a factor in defining “natural?” Why or why not?“). In addition, to the extent there is an arguable conflict between plaintiffs’ claim and the FDA‘s informal policy, and assuming arguendo that an informal policy has legal significance, the “federal issue” is really just a “federal defense,” not a basis for federal question jurisdiction under Grable. Finally, just as with the term “healthy,” the fact that the FDA is contemplating future regulation does not raise a federal issue within the meaning of Grable.
Accordingly, the Court concludes that plaintiffs’ claim does not implicate existing or contemplated federal regulations defining the terms “healthy” and “natural” so as to raise a federal question under Grable.
CONCLUSION
For the reasons stated above, the Court concludes that plaintiffs’ claim does not suffice under Grable to support federal question jurisdiction. Accordingly, plaintiffs’ motion to remand this case to the Superior Court of the District of Columbia will be granted. A separate Order (ECF No. 16) accompanies this Memorandum Opinion.
Notes
- Crunchy granola bars (Oats ‘n Honey, Peanut Butter, Maple Brown Sugar, Vanilla Almond Nut & Seed, Coconut, Pecan, and other varieties);
- Trail Mix chewy granola bars (Fruit & Nut, Dark Chocolate & nut, and other varieties);
- Sweet & Salty Nut granola bars (Peanut, Almond, and other varieties);
- Breаkfast Biscuits (Honey, Blueberry, Lemon Poppy Seed, and other varieties);
- Biscuits (with Almond Butter, with Peanut Butter, and other varieties);
- Oatmeal Squares (Blueberry, Peanut Butter, Cinnamon Brown Sugar, Banana Bread & Dark Chocolate, and other varieties);
- Oatmeal Bars (Peanut Butter, Cinnamon Brown Sugar, and other varieties); and
- Oatmeal Bistro Cups (Brown Sugar Pecan, Apple Cinnamon Almond, and other varieties). (Compl. ¶ 6.)