Several years ago, most people had never heard of genetically modified organisms — commonly referred to as GMOs.  Chances are, if you were not a farmer or a scientist and did not work for a food manufacturer, you had never heard of GMOs.  Now, however, you can add lawyers and self-proclaimed healthy-eating advocates to the list of people who are very familiar with GMOs.  As the flood of suits against asbestos manufacturers and the tobacco companies slows down, enterprising plaintiffs’ lawyers are looking for the next tidal wave of litigation on the horizon.  One area where plaintiffs’ lawyers are trying to get a foothold is claims against food and beverage companies alleging false and deceptive advertising claims on their product labels.  As the U.S. attempts to respond to a growing obesity crisis, food and beverage companies have been forced to alter their product labels in order to comply with changing labeling requirements and to market their products to a more health-conscious consumer base.

One area of product labeling litigation that courts are currently dealing with is the propriety of manufacturers using terms such as “all natural” on products that contain GMOs.  Recently, in Brisneo v. ConAgra Foods, Inc., a federal court in California — which has recently been the epicenter of food-related litigation — denied an attempt to certify a putative class of consumers from eleven states who allege that ConAgra’s Wesson-brand vegetable oils are not “100% Natural” as the label claims because they contain oils extracted from GMOs.  However, the court dismissed the complaint without prejudice and allow the plaintiffs to replead in an attempt to justify its claim that the suit is amenable to class treatment.

Before discussing the specifics of the case, it may be helpful to briefly explain what GMOs are and why they are used in foods.  According to the World Health Organization (WHO), GMOs are defined as “organisms in which the genetic material (DNA) has been altered in a way that does not occur naturally.”  GMOs are used in food products because they have some perceived advantage either to the producer or the consumer.  The main benefit of using GMOs is the ability to develop crops which are more resistant to plant diseases caused by insects or viruses or to make crops more tolerant to herbicides used to protect the crops.  There have not been any scientific studies showing any health risks associated with the consumption of products containing GMOs, but given the various products that can be altered and the various techniques for altering a plant’s DNA, it is impossible for any organization to make a blanket statement regarding the safety of consuming GMOs.  Notwithstanding the benefits of using GMOs from a crop protection standpoint and the lack of any evidence that anyone has been injured through the consumption of GMOs, plaintiffs across the country have brought suits against food manufacturers whose product labels do not make it clear that they contain GMOs alleging false and deceptive advertising.  The FDA has not established clear guidelines for product labels that may include some form of GMOs, nor has the FDA clarified whether it is appropriate to include terms such as “natural” on the labels of products that include some GMOs.

In Brisneo, the plaintiff is seeking to certify a class of consumers who purchasedConAgra’s Wesson-brand vegetable oil product that is labeled as “100% Natural” notwithstanding the fact that it includes some GMOs.  The case includes plaintiffs California and ten other states:  Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, and Texas.  The various cases were consolidated before Judge Margaret M. Morrow in the Central District of California.  In dismissing the plaintiffs’ request for class certification, Judge Morrow held that the plaintiffs had not provided enough support for their claims that a reasonable consumer would be deceived byConAgra’s product labeling.  Moreover, Judge Morrow held that plaintiffs had not demonstrated that the “reasonable consumer standard” was applicable under the various consumer protection statutes that applied to putative class members in other states.  Some states may require a showing of individual reliance or some other standard, thereby making those claims inappropriate for class treatment.  Judge Morrow dismissed the complaint without prejudice, however, and allowed the plaintiffs to refile, noting that “[i]f the reasonable consumer standard applies across the board, I think you’d have something here…But I don’t think it does.”

Judge Morrow previously dismissed Brisneo’s claim as initially filed in 2011 on the grounds that he had not adequately plead his reliance on ConAgra’s use of “100% Natural” on its labels as required by Fed. R. Civ. P. 9(b) for fraud-based claims.  More importantly, however, Judge Morrow rejected ConAgra’s argument that Brisneo’s claims were preempted due to the fact that product labeling requirements fall under the purview of the FDA.  According to ConAgra, the FDA has concluded that bioengineered foods are not meaningfully different from foods developed by traditional plant breeding, and therefore, companies are not required to specifically include information that their products contain GMOs on their labels.  Judge Morrow noted that Brisneo’s claim was not thatConAgra’s label was required to include a notation that GMOs were included in the product — which she agreed would have been preempted.  Rather, Brisneo’s claim was that the use of the term “100% Natural” on ConAgra’s label was misleading to consumers given that the product included GMOs.  Judge Morrow also denied ConAgra’s request to dismiss or stay the case under the primary jurisdiction doctrine because the FDA had not indicated that it intended to provide any additional guidance on the use of the term “natural” on product labels.

As food producers continue to look for ways to increase crop production and to protect their crops from destruction, it is likely that the use of GMOs and other methods of protection will only increase.  As a result, absent more definitive guidance from the FDA, food manufacturers will have to determine whether and how to include GMO-related information on their product labels.  Companies will have to balance the potential litigation risk of not including this information against the potential loss of sales that may result from its inclusion by uninformed consumers who may perceive some health risk associated with GMOs.  As we recently discussed, the FDA recently indicated that it will provide additional guidance to the industry on the use of the term “evaporated cane juice” on product labels given the rise in litigation surrounding that issue.  Given the similar rise in litigation regarding the use of GMOs, it is possible that the FDA will provide additional guidance in this area as well.  We will continue to monitor the attempts of plaintiffs to find a foothold in the food product labeling area and report on any significant developments.