The complaint* – filed in the southern district of New York – alleges that reasonable consumers would not expect yogurts labeled ‘all-natural’ to use milk from cows fed genetically engineered feed.
The vast majority of corn and soy grown in the US is from genetically modified seeds, argues plaintiff Polly Podpeskar. “Reasonable consumers believe that if a cow consumes GMO grass, corn, or soy and then produces milk, the milk is not All Natural, and products derived from the milk, such as yogurt, are likewise not All Natural.”
Plaintiff: Consumer survey data suggests shoppers think ‘natural’ means no GM-feed
To support her claims, she cites a Consumer Reports survey suggesting that most consumers think that the ‘natural’ label on meat or poultry products currently means the animals’ feed contained no GMOs, and a Consumers Union survey suggesting that 86% of consumers expect a ‘natural’ label means ‘no artificial ingredients.’
The case follows a recent flurry of lawsuits alleging that most reasonable consumers also think that non-GMO claims on pack should mean that genetic engineering is not involved at any stage of food production, going right back to the sourcing of animal feed, although these cases have had limited success to date.
The legal lowdown on natural claims and GMOs
So where does the law stand on ‘natural’ and GMOs?
While new federal legislation** (the details of which are being thrashed out by USDA) will not require GMO labeling on milk or meat from animals fed GM feed, it does not make any reference to whether you can call such products ‘natural.’
In the absence of a concrete legal definition of ‘natural,’ meanwhile, marketers have historically relied on non-binding FDA guidance from the early 1990s saying natural means that “nothing artificial or synthetic (including all color 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”.
Should natural mean non-GMO (and what does that mean)?
The move has also prompted a lot of soul searching in the industry, with the Organic Trade Association arguing that products made from GE ingredients should not be described as 'natural,' but the Natural Products Association arguing that foods derived from biotech crops should qualify for a 'natural' label on the grounds that, "If 'natural' became synonymous with non-GMO, there would be no difference between the terms 'natural' and 'organic' [the latter being non-GMO by definition].”
Dale Giali: ‘These cases do not hold up’
From a legal perspective meanwhile, this has given defense attorneys the option to argue that ‘natural’ lawsuits should be stayed (put on ice) on primary jurisdiction grounds (ie. let’s leave this to the FDA) until the FDA processes all the comments and decides whether to define ‘natural.'
Dale J. Giali, a partner at law firm Mayer Brown, told FoodNavigator-USA that the Dannon case was in his opinion, just another “lawyer driven shake down,” and noted that a Florida judge recently tossed a similar case (Reilly vs. Chipotle Mexican Grill Inc) over non-GMO claims on Chipotle products.
He added: “These cases do not hold up. The longer they proceed the better the defenses get. Consumers are not deceived and/or are not buying the products based on natural labeling or based on this theory of deception.”
‘Many false advertising cases over ‘natural’ claims are being stayed on primary jurisdiction grounds’
As for the primary jurisdiction issue, he said, “Many [false advertising cases over ‘natural’ claims] are being stayed on primary jurisdiction grounds and I believe this is the clear and growing trend. That is also the case with theories relating to GMOs including second and third generation GMO theories [new techniques such as gene editing/CRISPR-Cas9 etc] as FDA/UDSA is looking at these exact issues.”
"I would expect this litigation to be stayed (or even dismissed) on the basis of primary jurisdiction. The Ninth Circuit and 10 district courts, including the Southern District of New York where this case was filed, have determined that the FDA’s current review of 'natural' requires a stay of pending cases concerning the use of the term.
"One of the issues the FDA is specifically looking at is whether genetic engineering should be a factor in defining 'natural,' and just recently the Southern District of New York stayed, on primary jurisdiction grounds, a litigation against KIND for, among other things, allegedly mislabeling their products as 'natural' where they may contain GMO ingredients."
Rebecca Cross, counsel in the food and beverage practice at Davis Wright Tremaine LLP
David Biderman: 'No court should wade into this dispute' while the FDA is reviewing 'natural' claims
David Biderman, a partner at law firm Perkins Coie, also noted that the non-GMO cases against Chipotle "haven't gained much traction, with cases being dismissed in California and Florida," noting that, "While I think plaintiff's counsel will likely argue that this case is distinguishable, this case, if correctly decided, should also find a similar fate."
But he added: "The court should not even reach the issue at this point with a new administration and the FDA's ongoing consideration of the definition of the term natural. The KIND cases [over 'healthy' claims - which are also being probed by the FDA] were recently stayed on this basis, as was a pending court of appeal decision on the Ninth Circuit. Given the FDA's consideration of this issue, no court should wade into this dispute when the Federal agency charged with determining food labeling issues is reviewing the very claim challenged."
Dannon told us that it “will not be commenting on this pending matter.”
*The case is Polly Podpeskar v Dannon Company Inc, 7:16-cv-08478 filed in the southern district of New York on October 31, 2016.