Dismissed class action versus Dannon claimed tainted food chain

Corn Begat Cow, Begat …

Turns out there is such a thing as original sin.

Polly Podpeskar spells it out in her October 2016 complaint against the yogurt giant Dannon: crops made from genetically modified organisms (GMOs) are consumed by cows, the resultant cows’ milk is therefore not natural, and therefore the yogurt Dannon produces from that milk is not natural either.

This spelled trouble for Dannon, which Podpeskar claimed was falsely labeling its yogurt as “all natural.”

The case sought relief under Minnesota’s Uniform Deceptive Trade Practices Act, False Statement in Advertising Act and Consumer Fraud Act. It also charged the company with common law fraud under New York law and statutory claims under more than 40 different state laws. Finally, the action demanded an injunction barring Dannon from continuing its labeling practices.


Dannon predictably moved to dismiss the case, claiming Podpeskar failed to state a plausible claim and lacked standing to pursue the injunction. The company also asked that her claims be stayed pending the arrival of new regulations on “natural” food labeling from the Food and Drug Administration.

In its opinion dismissing the case, the court concentrated solely on the claims themselves.

The court maintained that Podpeskar had not, as required, stated a plausible claim as opposed to a merely conceivable one. The claims were lacking, the court held, because she had not asserted that Dannon had engaged in a specific practice (e.g., purchasing milk from cows that were fed GMOs) that justified the suit or that Dannon yogurt actually contains artificial or unnatural ingredients. The court reasoned that her argument was “predicated on her own speculation” that GMOs and antibiotics consumed downstream in the chain of ingredients were considered to have been legally carried down to the final product.

In other words, the court noted concisely that the plaintiff had failed to allege that “any ingredient used in the Products is unnatural.” “Her claim,” the court continued, “is that, several steps back in the food chain, there may have been something unnatural ingested by a cow.”

The Takeaway

Hanging over the case, and mentioned in Dannon’s motion, is the ongoing review of the term “natural” by the FDA, the relation of that term to genetic modification and the implications of GMO source ingredients. Dannon urged the court to stay Podpeskar’s claims until the review is complete. But “since the Court finds that there is ample basis for dismissal regardless of any new FDA rules, it does not find a stay necessary,” and thereafter it dismissed the claim.