Definition of pure
1a(1) : unmixed with any other matter pure gold
(2) : free from dust, dirt, or taint pure spring water
These days, the weed-killing chemical glyphosate seems to find all sorts of ways to become a thing in our daily lives. One of the current debates centers around honey labels, proclaiming their products “Pure” or “100% Pure” despite containing trace amounts of glyphosate.
The question before the courts is whether a reasonable consumer seeing the terms “Pure” or “100% Pure” on a honey label would understand that to mean that trace amounts of glyphosate could very well be in the product due to the bees' forging process.
The courts have been left in the unenviable position of trying to make heads or tails of the argument because of dithering from the Food and Drug Administration, which has offered no rules on the use of labels featuring pure claims despite court cases dating back to at least 2016 when the Organic Consumers Association sued Sioux Honey Association Corporation. In 2017 that complaint was dismissed but then settled after the plaintiffs appealed.
But now Sioux Honey is again actively defending its use of “100% Pure.” The original complaint has been kicking around since it was filed in September 2016. It was stayed in 2017, in part pending an FDA determination of the use of “natural” in food labeling. Sioux Honey failed to get the stay vacated in 2019.
The stay was then lifted in 2020 and plaintiffs filed an amended complaint. In January 2021, United States District Court Eastern District of New York judge Gary R. Brown held a pre-motion conference and required parties to submit “a brief focused on the sole issue of the use of the term “Pure” or “100% Pure” on the SueBee label and the implications thereof regarding the plausibility of plaintiff’s claims, particularly in light of the Second Circuit’s decision in Axon v. Florida’s Natural Growers, Inc.”
In Axon v. Florida’s Natural Growers, Incorporated, Plaintiff Alexandra Axon claimed the use of “natural” in “Florida’s Natural” orange juice was deceptive because it contained trace amounts of glyphosate. The district court granted Florida Natural's motion to dismiss. On appeal, Axon argued the district court made numerous mistakes including applying an overly strict pleading standard in analysis of the branding. The U.S. Court of Appeals for the Second Circuit ruled against Axon but noted:
“First, we agree with the district court that the presence of glyphosate as a contaminant in Defendant’s products, rather than an intentionally-added ingredient, bolsters the conclusion that a reasonable consumer, viewing the brand name “Florida’s Natural,” would not make assumptions regarding the presence or absence of trace amounts of glyphosate. Second, the district court was correct to distinguish the cases that Axon cited because those cases involved different representations, such as “pure” or “100% natural,” and allegations that the defendant added unnatural ingredients to its products. Unlike “natural,” the words “pure” and “100% natural” indicate the absolute absence of contaminants. See, e.g., Pure, Merriam-Webster Dictionary, http://merriam-webster.com/dictionary/pure (defining “pure” as “free from dust, dirt, or taint”). And Axon makes no allegation that Defendant adds glyphosate as an artificial/synthetic ingredient to its products.”
In short, the Second Circuit concluded a reasonable consumer would not make an assumption that Florida Natural orange juice contained trace amounts of glyphosate because the chemical was a byproduct of production rather than intentionally added to the OJ. But the Second Circuit also reasoned products labeled “Pure” or “100% natural” — unlike natural — would suggest an absolute absence of contaminants, presumably including glyphosate.
Judge Brown took the ball and ran with it. In his January pretrial ruling Brown found:
“Defendant urges the Court to conclude as a matter of law that SueBee's label is not
materially misleading to a reasonable consumer because any trace amounts of glyphosate in the honey was the result of the natural process of bees interacting with agriculture and not its production process, and thus its honey was in fact “Pure.” DE 44, 46. At this stage of the proceedings, however, the Court cannot conclude as a matter of law that the label on the SueBee products would not be misleading to a reasonable consumer. Stated differently, it is not so clear that a reasonable consumer would understand the terms “Pure” or “100% Pure” to mean that trace amounts of glyphosate could end up in honey from the bees' foraging process.”
The case now moves to discovery and trial. But it's hugely unfortunate that the labeling debate is being left up to the courts instead of the Food and Drug Administration, which continues to twiddle its thumbs overwriting a rule on “natural” and has yet to give labeling claims of “pure” or “100% pure” needed attention.
Wake up FDA.
Do. Your. Job.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Investigate Midwest covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect Investigate Midwest. Email him at firstname.lastname@example.org.