The lawsuit* – filed in the Northern District of California by plaintiff Colleen Gallagher on August 28 – argues that Chipotle’s non-GMO claims are “false, misleading, deceptive, unfair and unconscionable”, as it sells meat and dairy products from animals fed GM feed, and soft drinks from third parties containing sweeteners from genetically engineered corn.
According to Gallagher: “Chipotle told consumers it was ‘G-M-Over it,’ [but] the opposite was true… Among other things, Chipotle serves meat products that come from animals which feed on GMOs, including corn and soy. Chipotle’s tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs. And, Chipotle also sells Coca-Cola and other soft drinks that are made with corn-syrup—a GMO.”
While Chipotle explains on its website that its non-GMO claims don’t apply to fountain drinks and that “the meat and dairy served at Chipotle are likely to come from animals given at least some GMO feed,” most consumers won’t go to the website to discover this and read the small print, argues Gallagher.
“Chipotle only discloses this information on its website because it knows its fast-food customers never need to visit Chipotle’s website to buy food, and are highly unlikely to seek out this information when simply deciding where to get lunch or dinner.”
The legal minefield surrounding non-GMO claims
The lawsuit – which Chipotle argues is “meritless”, and “filled with inaccuracies” – highlights the legal minefield surrounding non-GMO claims, which can mean different things depending on who is making them.
For example, while Chobani markets its yogurts as 'non-GMO' [verified by eurofins] as they contain no genetically engineered ingredients, its yogurts would not qualify for the Non-GMO Project Verified stamp because Chobani uses milk from animals that may have been fed GM feed.
Similarly, the GMO labeling law that comes into force in Vermont in 2016, exempts meat or milk from animals fed GM feed, plus GM processing aids or enzymes, which means that products made with them wouldn't have to labeled GMO and could technically be described as Non-GMO.
But again, the Non-GMO Project, the most widely-used – albeit voluntary – non-GMO labeling scheme, would not permit its Non-GMO Project Verified stamp to be used on such products, as it typically disqualifies products if GM is involved at any stage in their production.
To add to the confusion, the Safe and Accurate Food Labeling Act 2015, which recently passed in the House of Representatives, proposes a federal voluntary 'non-GMO' labeling system run by USDA that would allow a food to be labeled non-GMO if it is produced with a GE processing aid or enzyme, or derived from animals fed GE feed or given GE drugs (click HERE).
Attorney: If genetic engineering has been involved at any stage of the production process, you're taking a risk by making non-GMO claims
In other words, not all non-GMO claims mean the same thing, Robert S. Niemann, a partner at Keller and Heckman LLP, told FoodNavigator-USA.
Just as with 'all-natural' claims, 'non-GMO' is in the eye of the beholder, he said, with different groups interpreting the phrase to mean different things.
And this means that any company making non-GMO claims on products in which genetic engineering has been involved at any stage of the production process - even if the final product does not contain any detectable GM ingredients - potentially "runs the risk of being sued", he said.
Rebecca Cross, a San Francisco-based attorney at law firm BraunHagey & Borden LLP, added: "Companies should take heed that if they are making GMO-free claims, they could be subject to litigation if they are using GM technology anywhere in their ingredient supply chain, e.g., the cows used to make the cheese in their product are fed GM corn.
"A safer approach for companies is to represent that they are Non-GMO Project Verified, as this has a standard meaning."
Attorney: The plaintiff identifies an ideal target to test a new theory of liability
David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP, told FoodNavigator-USA that this could prove something of a test case: “One reason this lawsuit was filed is the publicity surrounding Chipotle's announcement and the breadth of its claims regarding GMOs…
“Plaintiff's attorneys hope, no doubt, that their legal theory on how a reasonable consumer would understand ‘no GMO ingredients’ in this context will find some traction in light of the fanfare associated with Chipotle's announcement.
“This looks an instance where the plaintiff identifies an ideal target to test a new theory of liability.
But he added: “I suspect, however, that Chipotle will file a motion to dismiss which contends that no reasonable consumer would understand "No GMO ingredients" as meaning that meat must come from animals that only ate non-GMO crops.”
Chipotle: ‘We have always been clear that our soft drinks contained GMO ingredients’
Chipotle’s communications director Chris Arnold said the firm had always been completely transparent about its sourcing policies, meanwhile: “As we have said, it remains true that all of the ingredients we use to make our food are non-GMO. Chipotle has always been honest and transparent with its customers, and our messaging surrounding our use of non-GMO ingredients is no exception.
"We have always been clear that our soft drinks contained GMO ingredients, and that the animals from which our meat comes consume GMO feed. But that does not mean that our meat is GMO, any more than people would be genetically modified if they eat GMO foods." Chipotle
"For instance, we have always been clear that our soft drinks contained GMO ingredients, and that the animals from which our meat comes consume GMO feed. But that does not mean that our meat is GMO, any more than people would be genetically modified if they eat GMO foods.”
People that eat GM foods are not themselves genetically modified. The same applies to cows…
*The case is Colleen Gallagher v Chipotle Mexican Grill Inc. Case3:15-cv-03952-LB. Gallagher is represented by the legal firm Kaplan Fox & Kilsheimer LLP.
Gallagher alleges violations of California’s consumer legal remedies act, false advertising law, and unfair competition law.