ST. LOUIS — Plaintiffs in a proposed class action against Monsanto over alleged "overstatements" in the number of gallons that concentrated Roundup products make survived a defense motion to dismiss with the opportunity to amend their claims.

U.S. District Judge Audrey Fleissig on Aug. 7 ruled that claims involving Roundup Concentrate Plus should be dismissed because plaintiff Joshua Rawa did not actually buy that product; rather he only purchased Roundup Super Concentrate. Rawa was given 14 days to add another plaintiff who did purchase Roundup Concentrate Plus.

"The 'Makes Up to 23 Gallons' label on the front of Super Concentrate may well put a reasonable consumer on notice to check elsewhere on the container’s labeling for mixing directions to obtain that yield," Fleissig wrote. "And indeed, mixing directions were provided on the circular diagram on the front of the back booklet label.

"But those directions, if followed, would result in much less than 23 gallons of weed killer. Significantly, the front of the booklet label did not direct a consumer to check the inside of the booklet label for other mixing options; nor did any part of the labeling on the front of the container. And the front of the back label did not qualify that the listed ratio was for the strongest solution, with more diluted options available."

The case filed earlier this year alleges that label instructions that say the “up to” the amount displayed on the front of the container was deceptive because that statement was based on a mixing instruction "buried" inside the booklet label rather than on the front of the back booklet label.

Plaintiffs say that "reasonable consumers" would not see it before buying because they would not feel they were permitted to open the booklet label before purchase. 

They claim the practice violates the Missouri Merchandise Practices Act (MMPA).

The proposed class would include persons, other than Californians, who bought the Roundup products on or after April 5, 2012. 

"Plaintiff alleges that he and the other putative class members have suffered an ascertainable loss within the meaning of the MMPA, because the actual value of the Roundup Concentrate they purchased was less than the value of the product as represented," the suit claims.

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