A California federal court has granted in part and denied in part a motion
to dismiss a lawsuit alleging Chipotle Mexican Grill Inc. misleadingly
advertises its food as free of genetically modified organisms (GMOs)
despite allegedly selling flour and corn tortillas with GMOs, using GMO
soy in its cooking oils and serving meat and dairy products derived
from animals fed GMO feed. Pappas v. Chipotle Mexican Grill Inc., No.
16-0612 (S.D. Cal., order entered August 31, 2016).

Chipotle argued that reasonable consumers would not “equate ‘nonGMO
ingredients’ with ingredients not derived from animals that have
eaten genetically modified feed.” The plaintiff argued that the reasonable
consumer standard was not applicable at the motion-to-dismiss stage in
a fraud or deception case, but the court found that the standard could be
used to hold the plaintiff’s allegations to be implausible.

The court compared the plaintiff’s meat and dairy allegations to a case in
which a court found allegations that pasta was misleadingly advertised as
“all natural” because the definitions of “all natural” cited by the plaintiff
were not deceptive in the context of pasta. “Likewise, Plaintiff has failed
to allege a plausible objective definition of the term ‘non-GMO’ that
would deceive reasonable consumers in this context, or that reasonable
consumers would share her interpretation,” the court stated.

“Plaintiff does not provide a definition of the prefix ‘non-’ but defines
GMO as a genetically modified organism, or ‘any organism whose genetic
material has been altered using [certain] genetic engineering techniques.’
[] ‘Non-’ is defined by Merriam-Webster’s Dictionary as: not, other than,
reverse of, or absence of. Thus, non-GMO would mean not genetically
altered, or in the absence of genetically altered organisms. Yet, Plaintiff
claims she interpreted ‘non-GMO’ to mean not derived from animals
that have consumed GMO-containing feed. Plaintiff does not allege that
by eating feed with genetically modified ingredients, animals themselves
become genetically modified organisms.”

The court dismissed the plaintiff’s allegations related to GMO animal
feed but denied the motion to dismiss the allegations related to the GMO
corn, flour and soy ingredients. Additional details on the complaint
appear in Issue 598 of this Update.


Issue 616

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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