"GMO-free" avocado oil isn't deceptive even if all avocado oil is GMO-free

Whiteside v. Chosen Foods, LLC, --- F.Supp.3d ----, 2025 WL 2460192, No. 3:25-cv-00481-CAB-DDL (S.D. Cal. Aug. 26, 2025)

xkcd, "Free"

XKCD may hate it, but the law will allow it.

Plaintiff alleged that defendants misleadingly advertised their avocado oil by using a non-GMO label, because all avocado products are free from GMOs. The court found that reasonable consumers would not receive the message that other avocado oils had GMO ingredients from the label claims “non-GMO” and/or “non-GMO Project Verified.” The latter was literally true. “As a matter of law, the reasonable consumer and purchaser of the Products would understand that the Non-GMO Project Verified label means that the Products are certified by the Non-GMO Project,” and nothing more. The court agreed with defendants “that a reasonable consumer who cares about the GMO status of ingredients knows that there are no commercially available genetically engineered avocados, and if consumers had any questions about the Non-GMO Project’s certification standards, they would review those standards.”

Given that reasonable consumers are expected to know a fair amount about the world, “as a matter of law, the reasonable consumer of the Products would understand that only certain foods are available in both non-GMO and GMO forms, that certain ingredients—including avocado oil—are only available in a non-GMO form, and that avocado oil is a non-GMO alternative to canola or vegetable oils.” I think this is a lot to expect of reasonable consumers—a far better justification would be that reasonable consumers don’t think through the implications of a claim for other products unless they’re given more reason to do so than this. “Given this context, a reasonable consumer would not interpret the Products’ label to represent anything about whether other avocado oil products contain GMOs or the GMO-free status of commercially available avocados.”