consumer understanding of "non-GMO" plausibly includes "no GMO in animal feed"

Norman v. Gerber Prods. Co., 2023 WL 122910, No. 21-cv-09940-JSW (N.D. Cal. Jan. 6, 2023)

Norman sued Gerber for allegedly falsely advertising its baby food/infant formula products as  “NON GMO Not Made With Genetically Engineered Ingredients” on the front of the package, and also on the back above the ingredients list. She brought the usual California statutory claims, as well as a variety of common-law claims.

Norman failed to allege that she lacked an adequate remedy at law for equitable restitution, but she had standing to seek injunctive relief because she wanted to rely on the labels but couldn’t. She also sufficiently alleged standing to pursue claims on behalf of a class for products she didn’t purchase, since the products were all made in the same factories, the alleged misrepresentations were identical, and the misleading effect was the same across the products in terms of what a reasonable consumer would understand “non-GMO” to mean.

The allegations also satisfied Rule 9(b)’s heightened pleading standard, though not all of her allegations stated a claim.

Norman defined GMOs as organisms that have been altered through genetic modification, “an artificial laboratory-based technique that is specifically designed to enable the transfer of genes between unrelated or distantly related organisms,” and listed ingredients that were allegedly GMOs. There were three categories: (1) ingredients allegedly derived from genetically modified crops or food sources; (2) ingredients allegedly genetically engineered in a laboratory setting through the use of biotechnologies; and (3) ingredients allegedly sourced from animals raised on GMO feed. Category (1) was unproblematic; she failed to sufficiently allege how (2) involved a “transfer of genes,” but was granted leave to amend.

Category (3) is the interesting one to me, because Gerber argued that Norman failed to allege that animals fed GMO feed were themselves genetically modified or produced genetically modified byproducts. Other cases have rejected similar claims. But here, Norman alleged that reasonable consumers would interpret “non-GMO” to mean meat and dairy ingredients from animals that did not consume GMO feed.

She supported this claim with allegations about the prevalence and recognizability of the Non-GMO Project, which uses the same definition of non-GMO as the complaint; the efforts of the federal government; and market research into a reasonable consumer’s interpretation of the term non-GMO. She was not claiming that the animals themselves or their byproducts were genetically modified, but that a reasonable consumer would believe that non-GMO ingredients are not derived from animals fed genetically modified feed. Gerber said that was unreasonable because, under federal law, regulations on bioengineered food “should exclude a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance.”

But Norman sufficiently alleged that consumers have a broader understanding of the term “non-GMO”; this was an issue for summary judgment. She further alleged that the inclusion of the statement “not made with genetically engineered ingredients” under the words “non-GMO” would not matter to a reasonable consumer because consumers use these terms interchangeably and understand them to be the same. This plausibly alleged deceptiveness.

Gerber argued that no reasonable consumer would confuse Gerber’s image with the Non-GMO Project’s seal. In Gordon v. Target Corp., No. 20-CV-9589 (KMK), 2022 WL 836773 (S.D.N.Y. Mar. 18, 2022), the plaintiff challenged a graphic labeled “non-GMO” and contained the sub-heading: “ingredients not genetically engineered.” The court found the Non-GMO Project’s seal highly distinctive because it included the organization’s name, the word “verified,” the URL for the Non-GMO Project’s website, and a graphic of an orange butterfly with a blade of grass. The only similarity between the Non-GMO Project’s seal and the product’s non-GMO graphic was the use of the term “non-GMO,” and it was patently implausible and unrealistic for a reasonable consumer to believe the product was verified by the Non-GMO Project.

Here, however, there were more similarities to the Non-GMO Project’s seal, including capitalized “NON GMO” text and a V-shaped leaf-like graphic. These similarities “could give reasonable consumers the impression that Defendants’ products met the Non-GMO Projects’ standards.” (No reference to trademark standards, interestingly.) Moreover, Norman alleged that the work of the Non-GMO Project is well known because the seal is found on over 50,000 food products and the Non-GMO Project website has over 200 million visits a year. A fact finder could conclude that the recognizability of the Non-GMO Project’s seal “could actually be a source of ... confusion” between Defendant’s Image and the Non-GMO Project’s seal.

This, in conjunction with federal efforts to adopt standards for non-GMO labeling and market research into a reasonable consumer’s interpretation of non-GMO supported the claim that a reasonable consumer would be deceived.

Nor could Gerber rely on the ingredient list at this stage. Plausible misleadingness on the front of a package is not necessarily cured by a disclosure somewhere else on the packaging, and the ingredient statement also didn’t clearly dispel the alleged deception.

Did Norman plausibly plead that the animals consumed GMO feed? It wasn’t necessarily enough to allege general statistics, e.g., 92% of corn grown in the United States is genetically modified, and therefore, cows who feed on corn are likely consuming genetically modified corn. But Norman’s other allegations, combined with those, were sufficient: independent testing from GMO Free USA, a nonprofit, confirming the presence of GMOs in at least one of Gerber’s products. Moreover, the “general, but overwhelming, statistic[s] about genetically modified crops in the United States” were plausibly connected to the relevant ingredients.