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 ‘non- GMO 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.