Mounira Doss v. General Mills, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 20, 2020
• Docket: 19-12714
• Status: Unpublished

Opinion

Case: 19-12714 Date Filed: 05/20/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12714 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cv-61924-RNS

MOUNIRA DOSS, individually and on behalf of all others similarly situated,

Plaintiff-Appellant-Cross Appellee,

versus

GENERAL MILLS, INC.,

Defendant-Appellee-Cross Appellant. ________________________

Appeals from the United States District Court for the Southern District of Florida ________________________

(May 20, 2020)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 19-12714 Date Filed: 05/20/2020 Page: 2 of 6

Mounira Doss, individually and on behalf of a putative class, filed a

complaint asserting that General Mills, Inc., does not tell consumers that one of its

products—Cheerios—contains glyphosate. Glyphosate is a substance that is a

“probable human carcinogen.” Doss brought four claims against General Mills,

asserting a violation of Florida’s Deceptive and Unfair Trade Practices Act

(“FDUTPA”); breach of warranty; breach of implied warranty of merchantability;

and unjust enrichment. Doss is appealing the district court’s order granting

General Mills’s motion to dismiss her complaint.

I.

Glyphosate, an herbicide, is often sprayed on oats before they are harvested.

General Mills uses oats in manufacturing Original and Honey Nut Cheerios, the

two cereals Doss addresses in her complaint. Testing has revealed trace amounts

of glyphosate in samples of these cereals. The measured levels in the Cheerios that

tested positive range between 470 and 1,125 parts per billion. According to Doss,

“even ultra-low levels of glyphosate may be harmful to human health.” Doss relies

on a study published by a nonprofit entity, the Environmental Working Group,

which has determined that the “health benchmark” for glyphosate is 160 parts per

billion.

Doss’s claims against General Mills stem from General Mills’s alleged

failure to disclose to consumers that its Original and Honey Nut Cheerios contain

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glyphosate. She seeks to represent a nationwide class defined as “all persons who

purchased Cheerios and Honey Nut Cheerios in the United States” and a Florida

class defined as “all persons in the State of Florida who purchased Cheerios and

Honey Nut Cheerios.” Doss maintains that this putative class has been harmed by

General Mills’s lack of disclosure because, if they had known the cereal contained

glyphosate, they would never have purchased it.

General Mills filed a motion to dismiss Doss’s complaint on several

grounds. It argued that Doss lacked Article III standing; her claims were

preempted; the Environmental Protection Agency had exclusive jurisdiction over

Doss’s claims; and Doss failed to state a claim under Federal Rule of Civil

Procedure 12(b)(6). The district court agreed that Doss lacked standing, primarily

finding that there is “no allegation that the cereal she purchased even contains

glyphosate, never mind harmful levels of it.” It dismissed Doss’s complaint and

declined to reach the other grounds General Mills raised. Doss challenges that

decision.

II. Whether a party has Article III standing is a threshold jurisdictional issue

that must be resolved before any federal court can reach the merits of a plaintiff’s

claim. Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of the Treasury, 773 F.3d

243, 245 (11th Cir. 2014). We review de novo whether a plaintiff has Article III

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standing. Id. “In assessing standing on a motion to dismiss, we presume the

plaintiff’s ‘general allegations embrace those specific facts that are necessary to

support the claim.’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S. Ct. 2130, 2137 (1992)). We must accept as true all material allegations

of the complaint and construe the complaint in favor of the complaining party. Id.

III.

To have Article III standing, a plaintiff must have “(1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.

Robins, 578 U.S. ___, 136 S. Ct. 1540, 1547 (2016). To establish the first 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.” Id. at 1548 (quotation marks omitted). A “concrete” injury is

“real[] and not abstract.” Id. (quotation marks omitted). For an injury to be

“particularized,” it “must affect the plaintiff in a personal and individual way.” Id.

(quotation marks omitted).

Doss says she has suffered an economic loss solely by purchasing Cheerios

that she would not have purchased if she knew they contained glyphosate.

Economic injuries are the “epitome” of concrete injuries. MSPA Claims 1, LLC v.

Tenet Fla., Inc., 918 F.3d 1312, 1318 (11th Cir. 2019). A person experiences an

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economic injury when, as a result of a deceptive act or an unfair practice, she is

deprived of the benefit of her bargain. See Carriuolo v. Gen. Motors Co., 823 F.3d

977, 986–87 (11th Cir. 2016) (holding that class members bringing FDUTPA

claims were denied the benefit of their bargain and thus injured when they

purchased vehicles that were represented as having three perfect safety ratings but

actually had no safety ratings). “Ordinarily, when a plaintiff purchases a product

with a defect, the product retains some value, meaning her benefit-of-the-bargain

damages are less than the entire purchase price of the product.” Debernardis v. IQ

Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019). However, one

exception to this general rule applies when the “product is rendered valueless as a

result of a defect.” Id. (quotation marks omitted). We analyze Doss’s allegations

under this “valueless” framework.

Doss claims that “she was misled by General Mills’ health-related

statements,” including that Cheerios are “packed with nutrients” and are

“wholesome,” because those statements are irreconcilable with the presence of

glyphosate. To evaluate a benefit-of-the-bargain theory in this context, we must

consider whether Doss alleged that the presence of glyphosate lowers the value of

the Cheerios she purchased. See Debernardis, 942 F.3d at 1084. Doss appears to

be advancing a theory that the presence of glyphosate renders Cheerios unsafe to

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eat. See Complaint at ¶¶ 12, 14–16, 35; Appellant’s Brief at 10. But this is where

her allegations do not match her underlying theory.

Doss has not alleged that glyphosate is wholly unsafe to consume, rendering

the Cheerios she purchased valueless. Cf. Debernardis, 942 F.3d at 1085 (“[W]e

accept, at least at the motion to dismiss stage, that a dietary supplement that is

deemed adulterated and cannot lawfully be sold has no value.”). Rather, she has

alleged that “ultra-low levels of glyphosate,” such as levels above a benchmark of

160 parts per billion, “may be harmful to human health.” But Doss has not alleged

that she purchased any boxes of Cheerios that contained any glyphosate, much less

a level of glyphosate that is so harmful the Cheerios are “presumptively unsafe”

and therefore worthless. See Debernardis, 942 F.3d at 1086. Because Doss has

alleged merely a “conjectural or hypothetical” injury, we affirm the district court’s

order granting General Mills’s motion to dismiss. See Spokeo, 136 S. Ct. at 1548.

AFFIRMED.