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Massachusetts consumer-protection law could prove a slippery slope for maker of Wesson Vegetable Oil in an ingredient lawsuit

A federal appeals court today reinstated a lawsuit by a Brookline woman who sued because she was very put out upon finding that "100% natural" Wesson Oil may be derived from genetically-modified plants, which she claims makes it anything but natural.

The ruling by the US Court of Appeals for the First Circuit in Boston overturned an order by a federal judge - issued in 2017 - dismissing the suit because he agreed with Conagra Brands that the labeling is fine with the FDA and that federal food regulations trump anything in state law.

But in reinstating Margaret Lee's suit - in which she is pressing to become the lead plaintiff in a class-action case that could mean more than $5 million in damages - the appeals court ruled that the real issue is not what sort of ingredients are in a product, but whether an informed consumer could feel deceived by labeling. And that, the court said, is something that is definitely covered by the Massachusetts consumer-protection law. It cited a similar ruling it issued last year reinstating a lawsuit by a woman who felt horribly led astray upon learning that one coffee company's "hazelnut creme" coffee contained no hazelnuts.

Lee sued Conagra - and Stop & Shop and Roche Bros. - in 2017 after, she says, years of happily, blithely buying Wesson Vegetable Oil because she thought "100% natural" meant, among other things, no genetically-modified ingredients. She says she was shocked when she learned otherwise, switched to another brand of vegetable oil and, as one does, contacted an attorney, one who fortuitously specializes in class-action lawsuits.

According to the court's summary of the case:

She submits that Conagra indicated that Wesson Oil was "100% Natural" on its label even though it contained GMOs, that Lee herself understood "100% Natural" to mean that Wesson Oil was GMO-free, that she purchased it from specific grocery stores in Massachusetts "five or six times per year" for years, and that she bought a different product after she learned that Wesson Oil contained GMOs. The complaint thus plausibly alleges that Wesson Oil's label could have deceived a reasonable consumer.

In addition to ruling that Lee has a case to make to a jury under state law, the court dismissed Conagra's argument that the FDA has determined that GMO products are, too, natural. In fact, the court said, the FDA has not actually taken a stand on whether GMO-based products can be labeled as "natural," that, in fact, the agency is still, ploddingly, trying to decide whether products with a GMO provenance can be labeled as "natural." The court said the agency took a stab at the question in the 1990s, then sought comments in 2015 on the question and has yet to issue any binding regulations on the issue:

Critically, the FDA's far more recent request for comment as to whether GMOs are natural [issued in 2015] implicitly acknowledges that the agency has not yet ruled that they are.

The court added:

We decline to wade into the debate over the best definition of "natural." At this stage, we need only decide whether Lee has plausibly alleged that a reasonable consumer might think that "100% Natural" means that a product contains no GMOs, and then base her purchasing decision on that belief. See Dumont, 934 F.3d at 40 [the hazelnut-creme coffee case]. Lee has met that low threshold, so her claim may proceed.

The court continued:

It is true that Lee points to no FDA regulation or guidance stating that a manufacturer may not describe as "100% Natural" a product that contains GMOs. But if "100% Natural" is reasonably read in light of the FDA's existing pronouncements to mean, among other things, "no GMOs," then the absence of an FDA pronouncement following Conagra's use of the term "100% Natural" should cut against Conagra, not immunize it. To conclude otherwise would be to say that food manufacturers can lie with impunity as long as the FDA has yet to bar the particular lie they wish to tell. The FDA likely does not have, for example, a rule specifically prohibiting labeling frog eggs "caviar."

Ed. note: The FDA has a Caviar compliance policy guide, which states that "The term 'caviar' unqualified should be applied only to the article prepared by the special method (salting) of sturgeon roe," although it goes on to state that because the FDA has yet to determine a final rule on the issue, even though it has been considering it since 1914, yes, 1914, that eggs of another species could be called another-species caviar, just not plain old "caviar."

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Comments

Did she really contact an attorney, or did an attorney contact her?

This isn't about compensation for suffering. Or making the world safe for vegetable oil consumers. It's all about generating wealth for one particular attorney.

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Voting closed 28

Government regulators can’t or don’t police every bogus advertising campaign, so we have a mechanism for private parties to do it and get paid well for their work at no cost to the public. There are no losers in this story.

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Voting closed 13

No, we all lose except the lawyer.

One-off lawsuits for millions of dollars are absolutely the worst way to handle product labeling issues. We all pay, and the general problem doesn't get solved.

If it worked so well, why weren't the majority of product labels fixed after the first such suit, and then these suits wouldn't keep happening?

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Voting closed 12

"One-off lawsuits for millions of dollars are absolutely the worst way to handle product labeling issues."

Well... doing nothing is probably worse, but I agree that this tends to benefit the lawyer more than the plaintiff or society.

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Voting closed 8

I don't want that fake shit, now. Gimme the GOOD shit!! Don't stomp on it. I want pure.

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Voting closed 10

First, it's from rapeseed. Bad name. Second, it can be quite acidic and not really nice to eat. So, here's what they did...they developed a low acid plant, called it the canola version of rapeseed and called the product canola oil.

Canola actually stands for CANada, Oil, Low, Acid.

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Voting closed 13

That women needs some Wessonaity.

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Voting closed 13

I admit... I skimmed the text.

But really lady? You sued Stop & Shop, Roche Bros, and others because of this?

Someone has a lawyer who works for free and has a lot of spare time

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Voting closed 16

I disagree with her but her position seems like a principled one, I admire her commitment.

There is so much crankiness here, it's like a reflex.

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Voting closed 15

Its a waste of tax payers dollars. I think after the 3rd time she tried this, there outta be some rule stating she can't try again. I get it.. due process.

But our court system is clogged already.. we really don't need folks like this who have too much time on their hands and cannot just buy another g-d product if they are unhappy, filling up dockets with this garbage.

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Voting closed 37

... every time one of these cases come up, so many people fall all over themselves to take the side of the giant corporate entity who is making a claim that is at best dubious and at worst fraudulent.

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Voting closed 9

Given that the federal agencies do such a piss poor job of enforcing consumer laws (such as labeling) it's falls upon payday seeking lawyers to keep these companies in check. Is it so much to ask for firms to actually disclose what's in the bottle and not use deceptive labeling?

But in this case, it's a real stretch. There's no federal obligation for disclose GMO ingredients and many do no think the word "natural" excludes these plants.

But in most other cases these lawsuits as well justified until the federal government starts representing people instead of corporations.

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Voting closed 20

Well, he is if she loses, but if she wins, he gets a nice cut of the settlement.

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Voting closed 14

that's what the lawyer/law firm is hoping for. Win or have the appearance of winning here and the lawyer/law firm will file a class action lawsuit. Maker of Wesson oil settles for a few $100 millions, lawyers get 1/3 - 1/2, a few plaintiffs get big $$, and thousands of consumers get a coupon for $1 off next purchase.

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Voting closed 8

Like, Do not iron pants while wearing them...

Frivolous in my opinion, it's oil .

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Voting closed 13

The sooner the term “natural” is either banned or regulated to mean something, the better. Absent government labeling regulators actually growing a pair, cases like this might have the beneficial effect of causing manufacturers to think twice before using it.

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Voting closed 15

Lawsuits like this cost hundreds of millions of dollars, but make us no closer to having proper regulation of words like "natural".

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Voting closed 10

Lawsuits like this cost hundreds of millions of dollars, but make us no closer to having proper regulation of words like "natural".

The cost on the taxpayers is pretty minimal: salaries for a judge and court staff, rent on the courthouse, etc. And when lawsuits are found to be frivolous, courts can recover some of these costs.

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Voting closed 11

Where do you think the hundreds of millions of dollars for the settlement comes from?

In lawsuit-heavy industries, like sports equipment, an absurd percent of the purchase price goes to lawsuit payouts, legal fees, and insurance for them.

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Voting closed 3

This is like suing Kellogs for having Tony the Tiger say Frosted Flakes are "Gr-r-reat!" when they're really not that great.

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Voting closed 6

This is like suing Kellogs for having Tony the Tiger say Frosted Flakes are "Gr-r-reat!" when they're really not that great.

It's not really like that at all. This is a very thoroughly litigated area of law; if you want to learn more about it you could use "puffery in advertising" as a search term.

"Great", "delicious", "awesome", "elegant", etc. are matters of subjective opinion and so do not have a truth value, so a claim that a product is "great!" cannot by definition be fraudulent.

Compare those with words like "handmade," "organically-produced," "fat-free," or "nontoxic", which are objectively either true or fase for any given product, and so are fraudulent if claimed when not actually true.

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Voting closed 7

It seems to me that it's much more of an unclear term that doesn't have as clear of an objective value as some of those other examples. Whether GMOs are "less natural" than, say, "non-GMO" corn (which itself is the product of millennia of selected breeding etc) seems to me to be entirely a subjective opinion.

(I'd also argue for "organically-produced" being similarly subjective, given the similar vagueness of "organic", tbh. Cue the chemists with "technically all food is organic!").

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Voting closed 7