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Organic Consumers Association v. General Mills, Inc.

United States District Court, District of Columbia

February 22, 2017



          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 “natural, ” “healthy, ” “100% Natural, ” or “Made with 100% Natural Whole Grain Oats” violates the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901, et seq. because the products contain glyphosate, a chemical pesticide. Plaintiffs originally filed their complaint in the Superior Court of the District of Columbia. After defendant removed the case to federal court, claiming federal question jurisdiction, plaintiffs filed the pending motion to remand. For the reasons stated herein, the motion to remand will be granted.


         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.) Glyphosate 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 describe 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 28 U.S.C. §§ 1441 and 1446(b), defendant timely removed this case to federal court, [4] asserting that even though the only legal claim in the complaint is an alleged violation of the DCCPPA, there is federal question jurisdiction under 28 U.S.C. § 1331 because plaintiffs' “right to relief necessarily depends on the resolution of a substantial question of federal law, specifically, the determination of whether certain food products are adulterated, unsafe, and mislabeled due to the alleged presence of a chemical pesticide residue, a matter governed by a comprehensive, uniform national regulatory scheme promulgated under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.” (Notice of Removal ¶ 2.) Plaintiffs dispute the existence of federal question jurisdiction and have moved to remand the case to Superior Court. (Pls.' Mot. to Remand, ECF No. 8 (“Mot.”).) Defendant opposes the motion to remand. (Def.'s Resp. to Mot. to Remand, ECF No. 13 (“Resp.”).)



         A party may remove a case from state to federal court only when the case could have been filed in federal court originally. See 28 U.S.C. § 1441(a). “When the plaintiff files a motion to remand, the defendant bears the burden of proving federal jurisdiction.” US Airways Master Exec., Council. v. Am. W. Master Exec., Council, 525 F.Supp.2d 127, 132 (D.D.C. 2007) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is to be presumed that a cause lies outside th[e] limited jurisdiction [of federal courts] and the burden of establishing the contrary rests upon the party asserting jurisdiction.”)). “Any doubts about the existence of subject-matter jurisdiction are to be resolved in favor of remand.” Id.


         Federal courts have “federal question jurisdiction” over matters “arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. The “vast majority” of federal question jurisdiction cases “are those in which federal law creates the cause of action.” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986); see also Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003) (“As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.”).

         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 v. Anderson, 539 U.S. 1, 8 (2003). 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, 133 S.Ct. 1059, 1065 (2013) (“[F]ederal jurisdiction over a state law claim [under 28 U.S.C. § 1331] will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”).

         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 element 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.[6] See Smith, 255 U.S. at 201 (“no other reason is set forth . . . as a ground of objection to the proposed investment” other than the allegation “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).


         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 because the issues are not “necessarily raised” by plaintiffs' DCCPPA claim. At most, the federal regulations are potentially relevant as a defense, but that does not provide federal question jurisdiction.

         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. 21 U.S.C. § 346(b)(2)(A)(i). “[T]he term safe [in this context] means that the Administrator has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” 21 U.S.C. § 346a(b)(2)(A)(ii). A food is deemed “unsafe” and “adulterated” if the pesticide chemical residue exceeds the established ...

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