Non-GMO claims on foods containing dairy or meat are fertile ground for false ad lawsuits, warn attorneys

Their comments came as US district judge in Florida allowed a false advertising case* - which centers on Chipotle's non-GMO claims - to proceed, two months after a California court dismissed a similar lawsuit against the burrito chain.

There is not, yet, a federal legal definition of ‘non-GMO ingredients’, although most state bills calling for mandatory GMO labeling (including the law coming into force in Vermont in July) do not​ require GE labels on meat or dairy from animals fed GE feed, or on products made with GE processing aids/enzymes.

However, some consumers take a harder line, and think non-GMO claims should not be used if genetic engineering has been used at any​ stage in the production process, regardless of what is in the final product.

One such consumer is Florida plaintiff Leslie Reilly, who recently filed a lawsuit* against Chipotle alleging that it sold meat and dairy products from animals fed GM feed and falsely advertised them as non-GMO as part of its ‘G-M-OVER IT' campaign.​

Chipotle says Reilly is applying a “nonsensical​” subjective, ultra-strict definition of ‘non-GMO’ that “would not plausibly be espoused by a reasonable consumer” ​(although it is the standard adopted by the Non-GMO Project) and says she “fails to allege any statutory, regulatory, or even her own definition of the term.”​

No reasonable consumer, claims Chipotle, would assume that ‘no GMO ingredients’ means the animals it sources its food from only eat non-GMO feed. 

"More evidence is needed to establish both a definition of the term [non-GMO] and whether a reasonable consumer would share Ms. Reilly’s interpretation of the term." ​US district judge Marcia Cooke, Florida​

Judge: We don’t know how consumers define Non-GMO​

However, in an order granting in part and denying in part Chipotle’s motion to dismiss the lawsuit, Florida US district judge Marcia G Cooke said that this was no means obvious.

She added: “While Chipotle has presented evidence that scientific as well as some proposed legal definitions of GMOs explicitly exclude the very items Ms. Reilly includes in her own definition, Ms. Reilly has responded with evidence that some consumers and legislators carry the same interpretation of the term espoused in her allegations. ​

“The divergence in the parties’ positions only indicates that, at this point, more evidence is needed to establish both a definition of the term and whether a reasonable consumer would share Ms. Reilly’s interpretation... Therefore, I decline to dismiss Ms. Reilly’s claims on an implausibility basis at this stage.”​

"We have always been clear that … the animals from which our meat comes consume GMO feed. But that does not mean that our meat is GMO, any more than people would be genetically modified if they eat GMO foods." ​

Chris Arnold, communications director, ​Chipotle​

California and Florida judges have a different perspective​

Her opinion contrasts with that of judge Haywood Gilliam (presiding over a similar case in California: Gallagher vs Chipotle 15-cv-03592​), who speculated​​ that the plaintiff’s ultra-strict interpretation of ‘non-GMO’ was probably not​ shared by most ‘reasonable’ consumers (this case was dismissed on other grounds, so the plausibility issue was moot).

"This decision really demonstrates the need for a unified standard on GMO labeling.Today, there's the Vermont standard, which excludes animal feed, the Non-GMO Project standard, which does not, and the True North standard, which allows for some. If courts start weighing in with their own standard, it will just add to the confusion. ​

"I would urge all companies making non-GMO claims to do so through a certification process that has a standard meaning, especially where there could be any allegation that genetic engineering has been used anywhere in the supply chain.  Or, at the very least, the company should make sure to have thorough, written verifications from suppliers on file ASAP.​

"Based on this decision, companies making such claims without certification on dairy or meat products are definitely litigation targets for plaintiffs' lawyers." ​

Rebecca Cross, partner, BraunHagey & Borden LLP ​

"I would say the court has improperly opened the door to further lawsuits for plaintiffs lawyers who are in the prowl for new claims. ​I doubt any consumers even thought about this issue, much less were misled." ​

David Biderman, partner, Perkins Coie​

Attorney: If genetic engineering has been involved at any stage, you're taking a risk by making non-GMO claims​

So what do attorneys make of Judge Cooke's comments?

David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, said she had potentially opened up a can of worms.

He told FoodNavigator-USA: "I would say the court has improperly opened the door to further lawsuits for plaintiffs lawyers who are in the prowl for new claims. ​

"I doubt any consumers even thought about this issue, much less were misled."​

What would a 'reasonable consumer' define as non-GMO?

"A frequently stated reason for the GM feed exemption ​[enshrined in Vermont's Act 120 and state ballot initiatives such as Prop 37 in California and I522 in Washington] in the US has been that it is common internationally. And a consistent definition of non-GMO, with respect to products containing meat/dairy from animals consuming GM feed, is certainly relevant to assessing the expectations of a 'reasonable consumer'.​" 

Leslie T. Krasny, partner, ​Keller and Heckman ​LLP​

Attorney: The Reilly case would likely be dismissed under the Vermont statute​

Robert S. Niemann, a partner at Keller and Heckman LLP, added: "The situation in the Reilly case would likely be dismissed under the Vermont statute​​...​ Section CP 121.02[a][i] states that there is an exemption for 'foods consisting entirely of or derived entirely from an animal that is itself not produced with genetic engineering, regardless of whether the animal has been fed or injected with any food, drug or other substance produced with genetic engineering.'​​

"However, she​ [Florida-based judge Marcia Cooke] would not be bound by that statute... ​There will, no doubt, continue to be debates in the courts as to the extent any GMO contact with food products creates another GMO product, and so on, so if ​​​there are any potential risks from an ingredient, process or formula, then you need to be cautious about your decision ​[to make non-GMO claims]."​

Food companies are currently scrambling to get their labels in order​​ as the July 1 deadline approaches to comply with the GMO labeling law in Vermont.

A federal GMO labeling solution that all stakeholders can support has yet to be hammered out in Congress, meanwhile.  

*The case is: Leslie Reilly vs. Chipotle Mexican Grill Inc, No. 15-cv-23425 filed in the southern district of Florida ​