Non-GMO claims in the spotlight again as judge certifies class in Chipotle lawsuit
The lawsuit* – filed in April 2016 – alleged that Chipotle’s ‘only non-GMO ingredients’ claims on instore signs were “false, misleading, and deceptive,” as it sold meat and dairy products from animals fed GM feed, and fountain drinks from third parties such as Coca-Cola containing sweeteners from genetically engineered corn.
Chipotle, in turn, argued that a strict interpretation of ‘non-GMO’ extending all the way to animal feed was not shared by ‘reasonable’ consumers or federal regulators, and that its website clearly spelled out that "the meat and dairy served at Chipotle are likely to come from animals given at least some GMO feed."
Judge: ‘Plaintiffs have provided extrinsic evidence that the ‘non-GMO’ representations at least could be misleading’
In a September 29, 2018, order certifying classes of consumers in California and Maryland who bought Chipotle’s products containing meat or dairy during the class period, however, US district judge Haywood Gilliam Jr amended a previous ruling, and argued that “Plaintiffs have provided extrinsic evidence that the ‘non-GMO’ representations at least could be misleading...
"Plaintiffs support their allegations with definitions used by the Non-GMO Project [which says products containing milk and meat from animals fed genetically engineered feed do not qualify for its Non-GMO Project verified seal] and the federal government, as well as market research and surveys into consumers' interpretations of the phrases."
He added: “Viewed in the light most favorable to Plaintiffs, there is a triable issue of fact as to whether a reasonable consumer could find that Chipotle's ‘non-GMO’ claims implied that the animals that produce Chipotle's meat and dairy ingredients were not fed GMO grain.”
As for Chipotle’s website disclaimer, said the judge, “It would not be reasonable to expect a consumer to search for disclaimers on a website to clarify a purported misrepresentation on in-store signage.”
Attorney: 'This theory of liability is an extreme, outlier position'
A Chipotle spokeswoman told FoodNavigator-USA that, “Unfortunately, we don’t comment on pending litigation.”
So what do food law attorneys that have been following similar cases make of the ruling?
Dale Giali, partner in the LA office of law firm Mayer Brown (which is not involved in the Chipotle case), told FoodNavigator-USA that, "This theory of liability is an extreme, outlier position."
He added: “Other cases with this theory of liability – that GMO seed in the supply chain is incompatible with a ‘No GMO ingredients’ advertising claim – have not been accepted by the courts or obtained this type of result.
"The new federal GMO disclosure law reflects the far more commonsense, consensus position that GMO feed in the supply chain does not make a by-product ingredient (e.g., cheese from milk from a cow fed with feed made from a GMO crop) genetically modified.
“And many court decisions, including in other identical cases against Chipotle, are in accord,” he claimed, citing two cases (Gallagher v. Chipotle Mexican Grill and Pappas v. Chipotle Mexican Grill) in which judges rejected plaintiffs’ claims that reasonable consumers would share their interpretation of non-GMO as extending back to animal feed.
“The European Union’s GMO disclosure law is also in accord," he noted. “All of this just makes sense. If a cow eats feed that comes from corn that comes from crops that were grown from GMO seed, that does not mean that the cow is a GMO cow, that the milk from that cow is GMO milk or that the cheese from the milk that comes from the cow is GMO cheese.”
Do all Non GMO claims mean the same thing?
The ruling comes hot on the heels of a lawsuit against Nestlé USA, in which the plaintiff argued that shoppers see a phrase such as ‘No GMO Ingredients’ on a logo and assume it is underpinned by the same standards as those enshrined in the ultra-strict Non GMO Project standard, given how widely used the seal is now on food labels.
Nestlé USA, however, said it did not claim to meet the Non GMO Project standard, pointing out that its ‘No GMO Ingredients’ claims are verified by a different third party: SGS, something that it spells out clearly to consumers on pack.
*The case is Colleen Gallagher v Chipotle Mexican Grill Inc. Case3:15-cv-03952-LB.
The issue of how far up the supply chain GMO and Non GMO labeling should extend – ie. should it extend to processing aids or animal feed? - is the topic of intense debate.
The Non GMO Project for example, takes a strict line, and says products containing milk and meat from animals fed genetically engineered feed do not qualify for its Non-GMO Project verified seal.
However, the new federal GMO labeling law (National Bioengineered Food Disclosure Standard) will likely not require GMO labeling on milk or meat from animals fed GM feed (although the final version has not yet been published).
That said, while the new law defines ‘bioengineered,’ it does not define Non-bioengineered, or non-GMO, with the original statute stressing that foods that don’t comply with the bioengineered definition are not to be considered automatically ‘non-bioengineered,’ or ‘Non-GMO.’