Chipotle has a ‘misleading, inconsistent, self-interested definition of Non-GMO,’ says (yet another) lawsuit

By Elaine Watson

- Last updated on GMT

Chipotle hit with fresh lawsuit over non-GMO claims

Related tags Genetically modified organism

Just two days after a Florida judge allowed a false advertising case vs Chipotle to proceed over its non-GMO claims, a copycat case has been filed in California, providing further evidence – say attorneys – of the legal minefield marketers are walking into when they make such claims on products containing dairy or meat ingredients.

The latest case,* filed on behalf of plaintiffs in multiple states by law firm Kaplan Fox & Kilsheimer LLP, says Chipotle’s definition of non-GMO (which applies to foods that don’t contain ingredients derived from genetically engineered crops) is “misleading, inconsistent ​[and] self-interested​.”

Reasonable consumers would assume that when Chipotle states that it uses “only non-GMO ingredients​,” this means that the beef, chicken, pork, cheese and sour cream sold in its restaurants are sourced from animals raised on non-GMO feed, argue the plaintiffs.

However, Chipotle's meat and dairy products are from animals fed regular, GM feed, it claims.

The plaintiffs are simply applying the Non-GMO project standard, argues lawsuit

If it seems like the plaintiffs filing this suit have a pretty strict definition of 'non-GMO' observe the attorneys, their definition is exactly the same as that used by the best-known non-GMO certification group in the country (the Non-GMO Project).

In order for animal products to be properly labeled as ‘non-GMO’ ​[under the Non-GMO Project standard] the products must meet a number of stringent requirements, including that the animals and poultry be fed seed that is less than 5% GMO for various periods of the animal’s life (including the entire life for meat animals other than poultry),” ​notes the lawsuit.

“Consumers thus readily and understandably associate ‘non-GMO’ marketing and similar terms with definitions set by the Non-GMO Project.”

Consumer research shows shoppers have a strict definition of non-GMO, says lawsuit

It goes on to argue that, “When used in food marketing and labeling, terms like ‘non-GMO’ and ‘GMO free’… have a broader meaning to consumers in that they convey food products do not contain and are not sourced or derived from genetically engineered foods and methods…”

Moreover, it adds, it has the data to prove that consumers feel this way: “A consumer research survey firm conducted a market survey of 1,003 consumers nationwide on behalf of Plaintiffs that confirms reasonable consumers would also expect and understand that a restaurant claiming its food did not contain GMOs would not serve food from animals fed with GMOs.”

Chipotle vows to contest ‘meritless’ lawsuits

Chipotle communications director Chris Arnold told FoodNavigator-USA that the lawsuits were meritless: “As a general rule, we do not discuss details surrounding pending legal actions, but have maintained throughout that there is no merit to these claims and we plan to contest them.”

However, it is by no means clear how such cases will fare in the courts. (While 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, there is not yet, a federal legal definition of ‘non-GMO.')

So right now, these cases hinge upon what a ‘reasonable consumer’ thinks ‘non-GMO’ means, and this is by no means clear, noted Florida US district judge Marcia G Cooke last week, “More evidence is needed to establish both a definition of the term and whether a reasonable consumer would share ​[the plaintiff’s] interpretation..."

Attorney: This is a mess

It’s still too early to say whether the cases vs Chipotle will trigger a wave of copycat lawsuits against other companies making similar claims, said Rebecca Cross, partner, BraunHagey & Borden LLP, but they highlight the confusion surrounding this term.

“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.”

*The case is: Schneider et al vs. Chipotle Mexican Grill Inc, No. 3:16-cv-02200-JSC filed in the northern district of California 

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