Whole Foods sued over disputed Non-GMO Project logos on almond milk; but is this a one-off or a fertile new source of class action lawsuits?

The lawsuit, filed on November 7 by plaintiff Michelle Richard, alleges violations of the California Unfair Competition Law and the Consumers Legal Remedies Act, plus negligent misrepresentation, among other things.

According to Richard: “Whole Foods misbranded the Blue Diamond Refrigerated Almond Breeze Original Almond Milk and Blue Diamond Refrigerated Almond Breeze Vanilla Almond Milk by advertising and selling these products with the Non-GMO Verified Labels when these products have not been verified by the Non-GMO Project.”​

Most Almond Breeze products are now Non-GMO Project verified​

Asked whether delays in the verification process meant that products with the new logo ended up hitting shelves before Blue Diamond got the final seal of approval from the Non-GMO Project, a Whole Foods spokesperson told FoodNavigator-USA: “We don’t comment on pending litigation.”​

According to the Non-GMO Project website (click HERE​​) most Almond Breeze products have now been verified, while some products (reduced sugar variants of almond milk) are still going through the process.

Asked when it had officially 'verified' the two products cited in the lawsuit, Non-GMO Project communications manager Caroline Kinsman said: “That information is proprietary to the brand.”​

Blue Diamond, meanwhile, said commenting on the lawsuit would not be appropriate because Blue Diamond is not party to the litigation.

A one-off or a potentially fertile new source of class action lawsuits?​

So what do food law attorneys make of this case?

Unlike class action lawsuits over whether GMOs are natural, or whether a product is made using them or not, this case simply claims that products were labeled as being verified by a third party, when in fact they had not (yet) been verified.

So is it a one-off that will come down to disputed paperwork, or a potentially fertile new source of class action lawsuits, given that many companies could potentially get caught out by introducing new packaging / logos before they get the final seal of approval from the Non-GMO Project, which is struggling to keep up with demand?

David Biderman, a partner in Perkins Coie’s consumer class action defense practice, told FoodNavigator-USA that he doubted this was the start of something big, adding: "I don’t think this is going to be the issue that is going to spawn the next wave of lawsuits.  ​

"Manufacturers and retailers are very careful with their claims.  I do not believe a manufacturer would claim approval from the non-GMO project if it had not been through the process. And that fact is very simple to know."​

The case is manufacturing an injury when no harm occurred​

But more importantly, he added, "The case is manufacturing an injury when no harm occurred. The complaint does not even allege that the Almond Breeze products contained GMOs. The plaintiff just alleges that the products had not been approved for use of the non-GMO Project stamp... I would think a judge would ultimately toss the case because there is no actual harm. California law is liberal in allowing some claimed injuries to survive, but this is cutting very close."​

William Dance, LA-based attorney at law firm Tucker Ellis LLP, agreed that this case is unlikely to spawn a flurry of copycat suits "because I doubt there are many products that fall into the category of displaying the Non GMO Project Verified label but for which the verification process is not complete. The class for such an action would be hard to ascertain because it would be only purchasers who purchased after the label was displayed but before the verification was completed, presumably quite a narrow time window."​

We usually see these cases filed in a federal court and against the manufacturer rather than the retailer​

In other respects, he said, the complaint "appears to be typical, pleading that the plaintiffs paid more than they otherwise would have in reliance on the truth of the label, except we usually see these cases filed in a federal court and against the manufacturer rather than the retailer".​

The case is Michelle Richard v. Whole Foods Market California Inc. BC563304, in the Superior Court of the State of California, for the County of Los Angeles.