Tort lawyers and anti-GMO activists are turning to the courts to press their attack against genetically modified foods. The latest tactic, according to an article on Bloomberglaw.com, is to file class action lawsuits against major food manufacturers including PepsiCo and Smuckers for allegedly mislabeling their products. The suits claim that labels such as ‘natural,’ ‘all natural’ or ‘100% natural’ are deceptive because the products contain genetically modified ingredients.
A class action lawsuit is one in which a large group of people collectively bring a claim to court or a large group of defendants is being sued. In the recent food labeling cases, usually one person or non-profit organization—the ‘class’—files a lawsuit against a food manufacturer claiming that the ‘natural’ label is misleading or deceptive because the products are made with GM corn or soy—about 90 percent of those crops grown in the United States are genetically modified—and therefore not ‘natural’ as advertised.
Among the popular products targeted in class action lawsuits for using a ‘natural’ label:
- Campbell’s vegetable soup because it contains GM corn.
- Naked labels its juice ‘all natural,’ but contains some GM soy.
- ConAgra’s Wesson oils are marketed as “100% Natural” when the oils purportedly contain GMOs
- Puffins brand cereal and snack products contained GM corn.
The plaintiffs face an uphill battle in court trying to prove legal deception. There are two hurdles. The tort lawyers would have to prove that ingredients labeled as ‘natural’ are subject to federal labeling guidelines. If that’s the case, they would then have to prove that GMOs fall under this regulation. But current law suggests that both hurdles are probably insurmountable.
According to the Food and Drug Administration’s website, “FDA has not developed a definition for use of the term natural or its derivatives. However, the agency has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances.” And because the FDA has also stated that GMOs present no unique health risk, there is no legal obligation for food manufacturers to label food containing GMOs.
Courts have so far refused to certify the few lawsuits filed against food companies that use the term ‘natural’ on a product that contain’s GMOs. In a recent lawsuit involving an ‘all natural’ label on Gurma Corporation’s Mission tortilla chips, a California judge decided to postpone any action for six months, calling on the FDA to make an official ruling with regards to GMOs and their ‘natural’ status. Other courts have been equally resistant to this legal tactic.
There are several reasons why lawsuits against food companies get thrown out or stall in the court, explain D. Matthew Allen, Christ S. Coutroulis, and Robert L. Ciottie writing on Bloomberglaw.com. In the unique case of GMO-specific lawsuits, the lawyers write, the main reason is that there is no common understanding of what ‘natural’ really means among average consumers:
There simply is no common understanding among consumers of what GMOs are, what bioengineered crops are, or what “natural” means in that specific context. This suggests that it is not possible to establish that the defendants’ labels are misleading or deceptive across a broad class of consumers whose common characteristic merely is that they bought the defendants’ products.
Relatedly, even setting aside the issue of reliance, the issues concerning the lack of a clear meaning of “natural” in the context of bioengineered food ingredients may well implicate the threshold issue of whether the statements appearing on the product packages are “deceptive” as to each class member in the first place.
Wide variations almost certainly exist among purchasers as to what they think (if anything) “natural” means in the GMO context. This presents both substantive (whether the package was deceptive for that consumer), and class issues (varying, or no, individual perceptions of “natural” in this context among class members).
If one consumer feels deceived by a ‘natural’ label when the food contains GMOs, there is no sufficient evidence to suggest that the majority of consumers also feel the same way. For this reason, a judge cannot certify that the plaintiff represents a class of consumers.
While scientists would agree that there is little material difference between a plant bred conventionally and one that has been genetically modified (ie, the difference is in the process, not in the end product), the term ‘natural’ must be defined in a legal sense when manufacturers label food products. This type of definition is up to the Food and Drug Administration—and it appears unwilling to wade into this legal thicket.
The attempt to influence labeling laws through class action lawsuits, the lawyers conclude, is not the most efficient or appropriate way to affect change, and activist groups or aggrieved consumers should explore other means of bringing these issues to light.
- “Square pegs into round holes: Class certification in GMO food products cases,” Bloomberglaw.com
- “Against Nature,” Slate