A class action lawsuit has been brought by law firm Milberg LLP on behalf of private claimant Julie Gengo in the Central District Court of California.
The claim
It is alleged that by labelling some of its Tostitos and SunChips products as “made with all-natural ingredients” Frito-Lay is misleading consumers because genetically modified corn and vegetable oils are also present in the product.
“The reasonable consumer assumes that seeds created by swapping genetic material across species to exhibit traits not naturally theirs are not ‘all natural’,” said the claim.
The claimant is pursuing the case on the basis of a violation of California and federal laws relating to unfair and fraudulent claims. (The claim in full is available here)
Food law attorney Jonathan W. Emord from Virginia-based legal firm Emord & Associates told this site the claim could be brought in any state but was most readily brought in California because of California's broad consumer protection statutes.
He said that unlike most other states, Californian claimants do not need to show that they were harmed, only that they purchased the product.
Frito-Lay company spokesperson Aurora Gonzalez told this site: "While we do not comment specifically on ongoing litigation, we are confident that the labeling on our packaging complies with all regulatory requirements."
Most natural label products contain GMOs
Emord said: “The claim will confront significant difficulty because it depends on the extent to which consumers would recognize GMO foods as not natural.”
He said that the US Food and Drug Administration (FDA) had not specifically addressed the issue though had issued a regulation in 1993, relayed in warning letters as early as last month, that using “natural” on a food label is truthful and not misleading when "nothing artificial or synthetic (including all colour additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food." (58 Fed. Reg., 2302, 2407 (Jan. 6, 1993))
“That federal determination may help bolster Frito Lay’s position,” he said.
“Its (the FDA’s) general position on GMOs and "all natural" claims strongly suggests that the inclusion of GMOs in foods does not disqualify the "all natural" claim. Moreover, the prolific presence of GMOs in the food supply makes it difficult for any food labelled “natural” to be truly GMO-free,” he added.
“Almost every company uses what might be considered GMO foods and because of the difficulty of containing GMOs, virtually every product containing a “natural” label undoubtedly contains GMOs,” he continued.
FDA position on ‘natural’
In 2008, the FDA told BakeryAndSnacks.com’s sister publication NutraIngredientsUSA that it had no plans to define the term ‘all-natural’ because of limited resources despite two petitions from the Sugar Association and bakery firm Sara Lee.
Emord said that damages for a successful claim in the Frito-Lay case could be in the tens of millions.
“Frito-Lay may consider it best to fight this one rather than settle,” he said.
Asked whether it was possible that the claim could have been initiated by a competitor, he replied: “Encouraging an interest group or private plaintiffs to sue is a strategy some companies have used in the past to avoid that exposure, but we have no indication that this has happened here.”