A federal court in Florida has determined that a putative statewide class is not preempted under federal law from claiming that the presence of genetically modified (GM) corn in Campbell Soup Co. vegetable soups renders its “100% Natural” labeling representations false. Krzykwa v. Campbell Soup Co., No. 12-62058 (U.S. Dist. Ct., S.D. Fla., order entered May 24, 2013). The court also refused to dismiss the claims under the primary jurisdiction doctrine.

In the original complaint, the plaintiff alleged that he purchased two soup products with GM corn. Their labels had been pre-approved by the U.S. Department of Agriculture (USDA) because they also contained chicken and the agency has pre-approval authority as to these products. Campbell argued that USDA’s seal of approval preempted state law-based labeling-related claims. Later complaint amendments changed the products at issue to vegetarian soups whose labels are under the Food and Drug Administration’s (FDA’s) regulatory purview and do not require pre-approval. Still, Campbell argued that FDA and USDA “have developed similar policies that govern the labeling of food products with ‘natural’ claims, and both have determined there is nothing material about bioengineered foods that differs from other foods.”

According to the court, “[d]efendant claims that the facts presented in this case create an issue of first impression, as the USDA approved labels of Campbell soups containing poultry meat that have the same GM[] corn and are in the same ‘line of soup products’ as the vegetable soups at issue in this case.” The court disagreed, finding “nothing special about being in the same product line from a preemption perspective.” According to the court, if it adopted Campbell’s position, “there would be no authentic reason to not also necessarily take the position that because the USDA approved two Campbell poultry meat soups not at issue in this case that no claims can be made in any case against any defendant that it is misleading to [label] a food product containing GM[] corn as ‘100% Natural.’”

The court also noted that USDA’s approval of the label’s use on chicken soups would not necessarily bind other agencies because it is unclear whether “USDA even knew that the soup contained GM[] corn, particularly as there is nothing on the soup label to so indicate.”

The court further determined that the action should not be dismissed under the primary jurisdiction doctrine, agreeing with the plaintiff that FDA’s lack of a disclosure requirement as to GM ingredients “does not necessarily close the door on whether a particular labeling or advertising may mislead and deceive consumers in violation of consumer protection laws.” The court opined that reliance on the doctrine is “also misplaced because the FDA has repeatedly declined to adopt formal rule-making that would define the word ‘natural.’” In addition, the court refused to dismiss the unjust enrichment claim. Campbell had argued that the plaintiff had an adequate remedy at law, but the court found that it was pleaded in the alternative and that it had been sufficiently pleaded.