Genetically modified organisms continue to present advertisers with problems, as evidenced by new decisions from a New York federal court and the National Advertising Division.

In the New York case, Smucker’s was unable to avoid a lawsuit challenging the use of “All Natural” claims for Crisco oils when a judge rejected the company’s argument that the putative class action should be preempted by Food and Drug Administration policies and regulations.

The complaint alleged that Crisco’s pure vegetable oil, pure canola oil, and pure corn oil are not “natural” because they were made from soy beans, rapeseeds, and corn, all of which were genetically modified organisms (GMO). The oils are also “so heavily processed” they are really manmade, according to the suit.

Smucker’s moved to dismiss the suit on preemption grounds, but the court said the plaintiff could move forward on her state law claims. The court noted that the FDA has not defined the term “natural,” that no federal specifications exist, and that the FDA in January 2014 explicitly declined to consider the specific issue in the case: “whether and under what circumstances food products containing ingredients produced using genetically engineered ingredients may or may not be labeled ‘natural.’”

The agency’s failure to address the issue was not significant, U.S. District Court Judge Paul A. Crotty wrote, and did not signal an approval of the “All Natural” phrase to describe foods containing GMOs. “Where the FDA is unable to address a potentially deceptive practice, state claims are one of the few means of safeguarding consumers and therefore should not be preempted by the FDA’s inaction.”

In denying Smucker’s motion to dismiss, the court noted that “While it might be better for the FDA to commence an administrative proceeding or process, involving all stakeholders, focusing on how, why, and when products can be labeled ‘all natural,’ the fact is that the FDA has not done so and is not likely to do so in the near future.”

In a second case, the National Advertising Division considered a challenge brought by Gerber against competitor Nuture, Inc., makers of Happy Baby and Happy Family infant and toddler food products, which claimed that its products contain “No GMOs” and were superior to nonorganic products because they were “truly enlightened [and] use the best ingredients nature has to offer . . . so babies are healthier.”

The NAD agreed that such comparative superiority messages should be modified or discontinued because Nurture lacked testing or scientific studies demonstrating that its products were richer in nutrients than conventionally grown produce.

In evaluating Happy Family’s “No GMOs” claims, the NAD noted that reasonable consumers would not construe a “No GMOs” claim to mean that absolutely no trace contamination has occurred, but that the product was produced without the intentional use of genetic engineering. “Until such time as science is capable of substantiating that there is a zero level of bioengineered material in a product, claims such as ‘No GMOs’ or ‘non-GMO’ accurately convey information regarding the manner in which a product has been produced (i.e., without the use of genetic engineering) and not that the products are actually GMO free.”

Although the “No GMO” claim was not misleading in and of itself, the self-regulatory body expressed concern about the way the claim appeared on product packaging under “Why happy baby?” alongside other claims differentiating the product from competitors. The context of the claim improperly implied product superiority, the NAD said, and appeared as an answer as to why consumers should buy the product rather than conveying simple factual information.

The use of the claim “clearly implies that there is some type of benefit associated with the product’s ‘No GMO’ status, whether it be on the basis of health, safety, or some other reason,” the NAD said. “The advertiser presented no evidence to support such a message. Further, as noted by the FDA, a label statement would be misleading if it implies that a food is superior because it is not bioengineered.”

To avoid conveying the unsupported message that the Happy Family products are superior to competitor products because they do not contain genetically modified ingredients, the NAD recommended that Nurture modify its advertising.

To read the opinion in Ault v. J.M. Smucker Co., click here.

To read the NAD’s press release about the decision, click here

Why it matters: GMO labeling continues to pose a real challenge for advertisers. Companies that choose to make such claims in the hope of taking advantage of consumer interest in organic food products need to be careful or face action from competitors, consumers, or both – and may soon have to contend with legislative restrictions in states that follow Vermont’s lead and enact labeling restrictions.