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Gerber bid to duck suit over non-GMO label sputters

The judge found a reasonable consumer could expect that non-GMO also means not made with ingredients from animals that eat GMO food.

OAKLAND, Calif. (CN) — A federal judge has denied most of baby food giant Gerber's bid to duck a class action claiming it lies about whether its baby formula products contain genetically modified organisms. 

Faith Norman, who purchased Gerber Good Start Soy 2 Powder Infant & Toddler Formula from stores in San Jose, sued Gerber over the labels on products claiming they are “non-GMO not made with genetically engineered ingredients.” Norman claims the products contain ingredients derived from genetically modified food sources, and therefore aren't non-GMO. She claims she would not have purchased the products if she had known they contain GMOs. 

Gerber said in a motion to dismiss filed this past April that Norman failed to show the company mislabeled its products in a way that would mislead a reasonable consumer. The company said reasonable consumers confuse the non-GMO label with the Non-GMO Project’s Verified seal and standard — which another court held last year was “patently implausible” when considering the same seal and a seal analogous to Gerber’s. 

“Plaintiff, however, disregards the distinct aesthetic differences between these two labels, the label’s definition of GMO, every federal, state, and regulatory body’s definition of GMO, and even her own definition of GMO,” Gerber said in its motion. 

In his 17-page ruling filed Friday, U.S. District Judge Jeffrey White said Norman properly pleaded that Gerber’s "non-GMO not made with genetically engineered ingredients” statement on the back of the packaging could mislead reasonable consumers. He denied Gerber’s motion to dismiss the claims, finding the plaintiff’s claims sufficient to seek injunctive relief.

White wrote that Norman sufficiently claimed she has Article III standing to pursue claims for products she did not purchase, because Gerber’s products are manufactured at the same factories in Cincinnati, Ohio, and all carry an identical non-GMO claim on the packaging. 

“The differences between the products raised by defendant in the motion may impact class certification or summary judgment, but the differences are not enough to defeat substantial similarity for the purposes of standing,” he wrote.

Gerber argued Norman did not sufficiently show “what” is false and “why” it is false. But White found because Norman claims to have reviewed the labeling, packaging and marketing materials for products, she satisfactorily “identifies the circumstances constituting fraud so that defendant can prepare an adequate answer from the allegations.”

Gerber also argued Norman did not plausibly show that ingredients fall within her definition of GMO. White granted Gerber’s motion to dismiss claims based on any ingredients made in a lab with biotechnologies, but granted Norman leave to amend her claims and denied Gerber’s motion to dismiss claims about ingredients sourced from animals raised on GMO feed. 

He found Norman satisfactorily claimed reasonable consumers would understand the non-GMO claim on the packaging to mean that products do not contain GMOs or use products from animals that consume GMO feed.

“Whether a business practice is deceptive is an issue of fact not generally appropriate for decision on a motion to dismiss,” the judge wrote. “However, courts have granted motions to dismiss under the UCL and similar statutes on the basis that the alleged misrepresentations were not false, misleading, or deceptive as a matter of law.” 

Gerber argued that consumers could use ingredient lists to determine whether products contain GMOs. The company said the Ninth Circuit recently considered this issue in Moore v. Trader Joe’s Corporation, where plaintiffs challenged the labeling of Manuka honey products because they said only 57.3% to 62.6% of honey was derived from Manuka nectar. The Ninth Circuit agreed Trader Joe's front labels complied with the FDA’s labeling requirements, but acknowledged ambiguity in the label.

“Defendant is attempting to undermine the Image on the front of the packaging with the statement and ingredient list on the rear of the packaging,” White wrote. “Plaintiff has plausibly alleged that defendant’s non-GMO claim is misleading, and that problem is not necessarily cured by a disclosure somewhere else on the packaging.”

For that reason, White denied Gerber’s attempt to dismiss a claim under the Unfair Competition Law’s fraudulent prong, and its attempt to throw out a breach of warranty claim. 

However, the judge denied Norman's request to seek adequate remedy at law for her restitution claim, finding her claims insufficient to seek equitable restitution because she did not show specific damages which are “inadequate or incomplete.”

The parties will return to court for a conference on March 17. Lawyers for the plaintiff and Gerber did not respond to requests for comment before deadline. 

Gerber has faced similar claims in a class action revived in 2017 by the Ninth Circuit. The panel ruled a mother who sued Gerber for labeling its sugar-laden baby food as “all natural” only had to prove the labels were misleading, not necessarily false.

“Shoppers in a supermarket aisle look for cues about quality in the products they buy,” that panel wrote. “If a shopper sees two products on a shelf and one says ‘supports healthy growth & development,’ while the other makes no similar claim and is cheaper, a likely inference is that the first product will be viewed as healthier, explaining why it costs more.”

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Categories / Business, Consumers, Health

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