Sue Bee beats suit: “pure” survey not good enough to show deception over trace pesticide amounts

Tran v. Sioux Honey Assoc., 2020 WL 3989444, No. 17-cv-00110-JLS-SS
(C.D. Cal. Jul. 13, 2020) 

Tran brought the usual California claims based on Sioux
Honey products labeled as “Pure” and “100% Pure,” arguing that the products
were mislabeled because they contain glyphosate, a synthetic chemical and
herbicide. Tran relied in part on testing carried out by the FDA in 2016 on a
Sioux Honey sample which identified the presence of Glyphosate in a concentration
of 41 parts per billion. A subsequent 2018 analysis commissioned by Tran’s
counsel, on three samples “returned varied results — there was no detectable
level of glyphosate in one sample; 30 parts per billion in a second sample, and
40 parts per billion in a third sample.” The parties agreed that glyphosate was
not an additive incorporated during the manufacturing process, but rather was a
byproduct of the honey’s natural production, when bees encounter the glyphosate
herbicide in nature. 

First, Tran could represent class members with claims
arising from the purchase of products labeled “100% Pure” even though she only
bought “Pure” labelled honey, as those claims were “reasonably co-extensive
with those arising” from the purchase of products labeled “Pure.” 

Second, Tran failed to produce evidence that would allow a
reasonable factfinder to find that the labels were deceptive to reasonable
consumers. Though the court had been unwilling to dismiss the claims at the
pleading stage, at this point Tran needed evidence that reasonable consumers
believed the word “Pure” on the label means that there will be no trace amounts
of pesticide in their honey. 

Tran relied on a survey. The expert (Thomas J. Maronick) surveyed
251 individuals over 18 who (1) lived in California, (2) were their household’s
primary food shopper or shared responsibilities for food shopping, and (3)
purchased or considered purchasing processed honey in the two months preceding
the Survey. After they saw a photo of a representative product, the 159
participants who responded that they saw the phrase “Pure Premium Honey” on the
label were asked two follow-up questions about the meaning of that term. 

First, they were asked the open-ended question, “[w]hat does
the word ‘Pure’ mean to you when you see it on a label for honey?” Second, they
were asked “[b]ased on what you saw on the label, which of the following, if
any, reflect your understanding of what ‘Pure’ means when you see it on a label
for honey?”: 

□ No additives □ Nothing artificial □ Made from pure bees □ Made with no chemicals □ Nothing but honey □ No chemical residues □ Other (specify) □ Don’t know/not sure 

In responding to the open-ended question, five participants
stated something to the effect that the term indicated the product contained no
chemicals, 19 stated that it meant the product contained nothing artificial, 52
stated that it meant that the product was “natural” or “just honey,” and 54 stated
that it meant that the honey contained no additives or substances added to it. In
response to the “closed-end” question as to what “pure” meant, 115 selected “no
additives,” 123 selected “nothing artificial,” 108 selected “no chemicals,” 114
selected “nothing but honey,” 100 selected “no chemical residues,” and 77
selected “made from pure bees.” [Are they made from real Girl
Scouts
?] 

But the theory of the case has always been about trace
amounts of glyphosate, and the survey “avoided the relevant question.” At his
deposition, Maronick acknowledged that he “wasn’t asked to focus on trace
amount[s].”

Tran argued that “a jury can determine whether advertising
is likely to mislead simply by comparing the challenged advertising to what was
actually delivered.” But in cases like this one, where “the allegedly false
word has no fixed meaning,” “even though not required, survey evidence can be
particularly helpful in determining whether a reasonable consumer would be
misled by accused labeling.” And even if a survey is not required, there must
be some evidence to satisfy the reasonable consumer test. [Could the named plaintiff’s
own testimony ever do this? If surveys aren’t required, something like that
must be allowed instead, I’d think.] Tran’s own personal view was only that pure
means “without added ingredients or chemicals,” and she offered “nothing to
show that her view of the labels equates to that of the reasonable consumer.” 

“Chemical residues” in the survey wasn’t enough to do the
trick. Nothing in the expert report suggested that “chemical residue” satisfies
as a stand-in for “trace” amounts, and “residue” and “trace” have different
dictionary definitions, with the latter indicating “a minute and often barely
detectable amount.” The court thought “[i]t would have been simple to present
the Survey participants with a question going to whether the participant viewed
a honey product containing trace amounts, or 41 parts per billion, of
glyphosate, as less than ‘Pure’ or ‘100% Pure.’”

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