OAKLAND, Calif. (CN) — A federal judge advanced some class claims against Bob’s Red Mill Natural Food over the presence of cadmium in its flaxseed products, despite the packaging of the products claiming they are healthy.
In August 2023, plaintiff Mark Hayden filed a putative class action against Bob’s Red Mill Natural Foods claiming deceptive marketing of its Whole Ground Flaxseed Meal and Golden Flaxseed Meal products. Hayden claims the products’ front labels contain representations such as “To Your Good Health,” which suggest the products are safe. But Hayden says the labels are misleading because a ConsumerLabs.com test found that the products contained high levels of cadmium.
Cadmium is a natural element found in small amounts in air, water, soil, and food. However, exposure to it can be harmful. Short-term exposure to cadmium in the air can cause bronchial and lung irritation, while exposure to highly contaminated food or water can cause severe irritation of the digestive tract including vomiting, diarrhea and even death
Hayden's original claims included violations of California’s Consumers Legal Remedies Act and Unfair Competition Law, and breach of implied warranties. Bob's moved to dismiss the claims, arguing Hayden lacked standing and had failed to plead any plausible claim for relief.
U.S. District Judge Haywood Gilliam Jr. ruled Monday that Hayden had plausibly pleaded an injury in fact and allowed those claims to proceed, since Hayden had claimed he would not have purchased the flaxseed product or would have paid less for it if he had known it contained cadmium.
Bob's had called Hayden’s claims “threadbare,” and argued Hayden was not promised anything he did not receive when he purchased the product. Gilliam called this argument “misplaced.”
“Plaintiff’s entire suit is premised on the notion that he was promised something he did not receive (i.e. flaxseed products without high levels of cadmium), and that he was exposed to false information on the product packaging (i.e. representations that created the net impression that products were healthy and did not contain toxic ingredients like cadmium),” Gilliam wrote in the 20-page ruling.
Bob's argued Hayden lacked standing because he purchased only one of the four products at issue in the case, and he could not possibly have been injured in any way by products he did not purchase.
Gilliam disagreed, noting the Ninth Circuit has ruled that there is no controlling authority on whether a plaintiff has standing for products they did not purchase, and that a majority of courts have held a plaintiff has standing to assert claims for unnamed class members based on products they purchased so long as the products and claimed misrepresentations are “substantially similar.”
Gilliam found the product Hayden purchased was substantially similar to the non-purchased products because all were claimed to have “high levels” of cadmium.
Hayden’s claims for injunctive relief also survived because the products are still being sold and there is risk of future harm to the putative class as long as the products remain on California store shelves with their current labeling, Gilliam found.
Bob's argued these claims should fail because cadmium occurs naturally in flaxseed and it would be impossible to reformulate the product in a way in which the plaintiff would purchase it.
“That impossibility is not manifestly clear to the court, as it is conceivable that the amount of cadmium could be reduced through processing or refinement techniques,” Gilliam wrote, noting that other flaxseed products on the market contain less cadmium than Bob’s Red Mill Natural Foods products.
Even though many of the claims survived, Gilliam dismissed Hayden’s California law claims because he had not adequately shown the representations on the product label are misleading or that Bob's has a duty to disclose the cadmium levels of the products.
“Plaintiff notably has not pled that the presence of cadmium at any level is unhealthy; his allegations instead focus on the risks of the ‘high’ levels of cadmium found in the products. But he does not allege any plausible standard for what constitutes ‘high.’ In discussing the litany of apparent cadmium-related health risks, the allegations do not make any connection between the levels of cadmium at issue in the cited scientific studies and the amounts of cadmium allegedly contained in the products,” Gilliam wrote. “Without this connection, there is no plausible basis to conclude that the health risks discussed could result from consuming the per-serving amount of cadmium contained in the products.”
The state law claims were dismissed with leave to amend. Hayden has 21 days to file any amended complaint.
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