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Rawa v. Monsanto Co.

United States District Court, E.D. Missouri, Eastern Division

August 7, 2017

JOSHUA RAWA, on behalf of himself and all others similarly situated, Plaintiff,
v.
MONSANTO COMPANY, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This putative class action filed under the Missouri Merchandise Practices Act, Mo. Rev. Stat. § 407.010, et seq., (“MMPA”) is before the Court on Defendant Monsanto Company's motion to dismiss Plaintiff's complaint for failure to state a claim. Plaintiff claims that Defendant overstated, on its products' labels, the number of gallons of spray solution Monsanto's Roundup Concentrates would make. For the reasons set forth below, the motion will be granted in part and denied in part.

         BACKGROUND

         The record establishes the following as relevant to the motion to dismiss. In the spring of 2016, Plaintiff purchased a 35.2oz container of Roundup Weed & Grass Killer Super Concentrate (“Super Concentrate”). On the front of the container near the top, a small separate label stated, “Makes Up to 23 Gallons.” Near the bottom of the main front label, appeared the statement, “KILLS THE ROOTS GUARANTEED.”

         (Image Omitted.)

         On the back of the container, a multipage booklet label was attached. The front of the booklet label included a circular diagram indicating “WHERE TO USE, ” “WHAT TO KNOW, ” and “HOW TO USE.” Within the “HOW TO USE” section, the circular diagram had two statements: “2½ fl oz Per Gallon of Water” and “Use a Tank Sprayer.” Using a ratio of 2½ fluid ounces of the concentrate per gallon of water would yield 14.08 gallons of solution.

         Below the circular diagram, on the front of the booklet label, was the statement,

Guaranteed Satisfaction
Open booklet for details

         Also on the back of the container, vertically alongside the booklet label, appears the statement, “Resealable Label for Directions & Precautions.” On the front of the booklet label there is a symbol indicating that the label could be peeled back, with the instruction, “OPEN, ” in the top right corner.

         (Image Omitted.)

         When the front of the booklet label is peeled back as instructed, the contents include “DIRECTIONS FOR USE, ” “PRODUCT FACTS, ” “MIXING INSTRUCTIONS, ” and “ADDITIONAL TIPS.” Under the mixing instructions, the directions provide two different dilution options: “For best results, add 2-1/2 fl oz (5 Tbs) to 1 gallon of water, ” and “For easy to kill weeds such as seedlings, add 1-1/2 fl oz (3 Tbs) to 1 gallon of water.” Using a ratio of 1-1/2 fluid ounces of the concentrate per gallon of water would yield 23.46 gallons of solution.

         Plaintiff purchased and used the product without opening the back booklet label, instead relying on the dilution rate provided by the circular diagram on the front of the booklet label, “2½ fl oz Per Gallon of Water.” As a result, Plaintiff obtained 14.08 gallons of the solution, not approximately 23 gallon as represented on the front of the container. Defendant sells Super Concentrate in other sizes, as well as Roundup Concentrate Plus in various sizes. All of these products have essentially the same labelling scheme as the container Plaintiff purchased.

         Plaintiff claims that the “up to” amount displayed on the front of the container was deceptive, as it was based, not on the mixing direction on the front of the back booklet label, but on a mixing instruction “buried” inside the booklet label, an instruction reasonable consumers would not see before purchasing the product in that they would not feel they were permitted to open the booklet label before purchase. Plaintiff asserts that this labeling and marketing practice violates the MMPA, citing to all acts prohibited by the ...


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