Can an advertiser promote a product as non-GMO when it includes meat from an animal that consumed GMO soy and corn?
That question is at the heart of a false advertising lawsuit in Florida federal court against Chipotle Mexican Grill. Leslie Reilly challenged Chipotle advertising that "all of [its] food is non-GMO," arguing that animals that eat feed from genetically modified organisms cannot produce non-GMO meat or products. Because the sour cream, cheese, and meat used by Chipotle are sourced from farms where the animals eat GMO feed, the national chain is deceiving consumers, Reilly charged.
The restaurant moved to dismiss Reilly's claims under Florida's Deceptive and Unfair Trade Practices Act, arguing that her claim was "implausible" and therefore nonactionable. Her subjective interpretation of the term "non-GMO" was "nonsensical," the company told the court, and "would not plausibly be espoused by a reasonable consumer."
But U.S. District Court Judge Marcia G. Cooke was not persuaded. "The reasonableness of her definition, upon which her interpretation of Chipotle's advertisements is based, is a question better decided upon examination of the evidence," the court said. "While Chipotle has presented evidence that scientific as well as some proposed legal definitions of GMOs explicitly exclude the very items Ms. Reilly includes in her own definition, Ms. Reilly has responded with evidence that some consumers and legislators carry the same interpretation of the term espoused in her allegations."
With both sides refusing to budge, the court said the case should move forward. "The divergence in the parties' positions only indicates that, at this point, more evidence is needed to establish both a definition of the term and whether a reasonable consumer would share Ms. Reilly's interpretation of the term," Judge Cooke wrote. She declined to dismiss the suit on an implausibility basis at this stage.
The court also denied the motion to dismiss on the plaintiff's unjust enrichment claims, but did toss Reilly's claims for injunctive relief without prejudice.
To read the order in Reilly v. Chipotle Mexican Grill, Inc., click here.
Why it matters: The debate and litigation over what constitutes a "natural" product advertising claim for non-GMO foods has heated up. The Florida case presents an interesting question: Can a company promote a product as non-GMO when the animals used for meat and dairy products were fed GMO feed? The judge declined to answer on her own, instead allowed the litigation to move forward for additional evidence.