On May 20, 2020, the Eleventh Circuit affirmed the dismissal of a proposed class action against General Mills for its alleged failure to disclose the presence of a harmful chemical in its Cheerios cereal. The Eleventh Circuit agreed with District Judge Robert N. Scola Jr.’s finding that the Plaintiff failed to allege an actual injury sufficient to confer Article III standing.[1]

The Plaintiff alleged General Mills failed to disclose that its Cheerios and Honey Nut Cheerios contain trace amounts of glyphosate, the herbicide that was the subject of the well-publicized class actions involving Monsanto Roundup. [2] The putative class representative sought to establish both a nationwide class and a Florida class of purchasers of Cheerios or Honey Nut Cheerios during the applicable class period.[3] In addition to claims of breach of warranty, unjust enrichment, violations of Florida’s deceptive practices act (FDUPTA), and restitution for revenues General Mills earned by purportedly misleading consumers, the Complaint also sought an injunction requiring General Mills to change the company’s allegedly deceptive practices.[4]

Affirming the dismissal of Plaintiff’s claim for lack of Article III standing, the Eleventh Circuit echoed Judge Scola’s observation that the Complaint contained “no allegation that the cereal [the Plaintiff] purchased even contains glyphosate, never mind harmful levels of it…”

The Court, therefore, concluded that the plaintiff—who did not allege she suffered any actual health impairment—could not establish a cognizable “injury in fact” sufficient to satisfy the threshold requirement of standing set forth in the Supreme Court’s seminal opinion in Spokeo, Inc. v. Robins. Indeed, Spokeo holds that to establish this element, a plaintiff must “…show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” [5]  The Eleventh Circuit endorsed Judge Scola’s conclusion that the lack of any allegation that the plaintiff actually consumed Cheerios containing glyphosate, much less that she consumed Cheerios containing harmful levels of the chemical, required dismissal of the lawsuit.[6]

On the heels of the headlining plaintiff recoveries in Monsanto, Doss was one in a series of cases brought against the food industry alleging harm caused by trace amounts of glyphosate and other pesticides contained in products. With everything from applesauce to dog food targeted, many believed pesticide class action litigation was here to stay. Increasingly, however, federal courts have rejected such claims predicated on “hypothetical” harm. The Eleventh Circuit’s ruling in Doss continues to turn the tide.

[1] Appeals from the United States District Court for the Southern District of Florida, Doss v. General Mills, Inc., No. 18-cv-61924, 6 (11th Cir. May 20, 2020), Case No. 19-12714.
[2] Complaint, Doss v. General Mills, Inc., No. 18-cv-61924, 1 (S.D.Fla. Aug. 16, 2018), ECF No. 1.
[3] Id. at 5.
[4] Id. at 10.
[5] Spokeo, 136 S. Ct. at 1548 (2016).
[6] Appeals from the United States District Court for the Southern District of Florida, Doss v. General Mills, Inc., No. 18-cv-61924, 6 (11th Cir. May 20, 2020), Case No. 19-12714.