In a lawsuit* filed against Nestlé USA in California, plaintiff Jennifer Latiff says she purchased Nestlé’s Lean Cuisine Marketplace frozen dinners and Coffee-Mate Natural Bliss creamers – which both feature a ‘No GMO Ingredients’ seal.
First, Latiff takes issue with the ‘No GMO Ingredients’ claim because some of the products in question contain dairy ingredients she says are derived from cows fed GM feed.
“This violates the Non-GMO Project standard, which does not allow for its seal of approval to be placed on dairy based products that could be from animals fed GMO feed… Defendant avoids the Non-GMO Project’s feed standard by using its own, self-created No GMO Ingredients seal, thereby creating confusion and deceiving consumers. Defendant’s own ‘standard’ allows for the use of GMO feed for dairy animals. The Non-GMO Project’s independent standard does not.”
Separately, she argues that the seal deployed on the Nestle products “is not a designation bestowed by a non-profit group, or even a neutral third party, but instead is the creation of Defendant… In developing the No GMO Ingredients seal, Defendant intentionally mimicked the appearance of independent verifiers’ seals such as the Non-GMO Project.”
Nestlé USA: This lawsuit is baseless... our claims are verified by SGS
Nestlé USA, however, which describes the lawsuit as “baseless,” points out that it does not claim to meet the Non GMO Project standard [which is stricter than many others in that it excludes meat and dairy from animals fed GM feed], and says its ‘No GMO Ingredients’ claims are verified by a different third party: SGS.
“As indicated on our labels, the process for manufacturing Nestlé’s products bearing a ‘No GMO Ingredients’ claim is verified by SGS, a world leader in third party inspection, verification, testing and certification.”
The SGS standard to which Nestlé USA adheres for products bearing the 'No GMO Ingredients' claim does not stretch to meat or dairy ingredients from animals fed GM feed, mirroring European standards and the forthcoming federal GMO labeling standard in the US (details of which are still being thrashed out by the USDA).
“This lawsuit is baseless. Our product labels that declare the absence of GMO ingredients are accurate, comply with FDA and USDA regulations, and provide consumers with information to help them make informed purchasing decisions. As indicated on our labels, the process for manufacturing Nestlé’s products bearing a 'No GMO Ingredients' claim is verified by SGS, a world leader in third party inspection, verification, testing and certification.”
Nestlé USA spokesperson
Attorney: Case points to the need for a single standard for Non GMO claims
So what do the legal experts say?
Lawyers quizzed by FoodNavigator-USA this week said the plaintiff faced significant hurdles.
“It is not uncommon to see three or more seals on a product label and I can certainly see consumers being overwhelmed and confused by exactly what each one means," said Amin Talati Upadhye attorney Ivan Wasserman.
"That said, the plaintiffs here have significant hurdles to overcome to seal the deal in this case. The seal does not have markings to imply it is from an independent third party, such as the name of a fictitious, official sounding entity, and the argument that certain consumers put value specifically on verification by the Non-GMO Project could be undercut by an argument that those consumers would specifically look for that group’s seal when buying on product.
"Most importantly, it seems that the non-GMO status of the products is in fact verified by SGS, an independent third-party, which, if true, would undercut any argument that the seal is a simple marketing gimmick.”
'This suit seems like a stretch...'
William Dance at Tucker Ellis said: "This suit seems like a stretch for several reasons. For the complaint to gain traction, the plaintiff would have to show that the hypothetical reasonable consumer would see the Nestle 'No GMO Ingredients' label and be deceived into believing it actually is or means exactly the same thing as the Non-GMO Project Verified label.
"But, first, the two labels appear quite different. The Nestle label is printed in a single color, whereas the Non-GMO Project label is printed in multiple bright colors. Beyond that, the words do not have the same meaning. Nestle is saying that its products contain No GMO Ingredients, which is not the same thing as saying they are Non-GMO Project Verified. Also, Nestle’s use of its No GMO Ingredients label is consistent with the draft USDA regulation and the European standard for such labeling. This affects both the deception and damages aspects of the claims."
Bruce Silverglade, principal at OFW Law, added: "While Nestlé USA substantiated the claim it is making, the overall impression of a 'No GMO ingredients' claim could be misleading in light of the prevalence of the Non-GMO Project certification. The case points to the need for a single standard for such claims."
Laura Venker, senior associate at Alston & Bird, said she was “not surprised that Nestlé considers the complaint baseless," and noted that the complaint also featured an image of the Non-GMO project logo (see left) that had been manipulated such that the word 'verified' was removed.
“The plaintiff’s argument relies heavily on manipulating the image of the Non GMO Project logo to remove the word ‘verified,’ likely because the plaintiff is aware that the word… not only clearly distinguishes it from Nestlé’s trademarked image, but also seriously undercuts plaintiff’s argument that consumers could be misled into believing Nestlé’s image is meant to convey a third-party certification.
“Likewise, the plaintiff cannot conceal the asterisk in Nestlé’s image, which refers to an explanatory statement on product labels that reads ‘SGS verified the Nestle process for manufacturing with no GMO ingredients’.”
*The case is Jennifer Latiff vs Nestlé USA 2:18-cv-06503 filed in the Central District of California. The plaintiff is represented by Daniel L. Warshaw and Bobby Pouya of Pearson, Simon & Warshaw LLP in Sherman Oaks, California and Michael R. Reese and George V. Granade of Reese LLP in New York, and alleges violations of several consumer protection laws.
Do all Non-GMO claims mean the same thing?
In the yogurt aisles, Chobani is making 'No GMO Ingredients' claims on pack based on the fact that its yogurts do not contain ingredients derived from GE crops.
Dannon, in turn, is going one step further for some of its brands, by adhering to the stricter standards of the Non-GMO Project verified standard, under which dairy products bearing its logo must also source milk from cows fed non-GM feed.
But do busy shoppers know or care about the difference between these two non-GMO claims? Read more HERE.