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Judge Baffled in Chipotle ‘G-M-Over It’ Ad Fight

SAN FRANCISCO (CN) - A federal judge on Thursday questioned whether a woman suing Chipotle over the misleading nature of its non-GMO ad campaign wasn't spoiling her chances at victory with her definition of genetically modified organisms.

Colleen Gallagher sued Chipotle in August 2015 over its "Food With Integrity" campaign. Through ads using catchy phrases like "G-M-Over It," the fast food chain touted itself as the first in the United States to use ingredients derived from non-genetically modified sources. According to Gallagher's federal class action, "among other things, Chipotle serves meat products that come from animals which feed on GMOs, including corn and soy. Chipotle's tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs. And, Chipotle also sells Coca-Cola and other soft drinks that are made with corn syrup - a GMO."

The complaint defines a GMO as any organism whose genetic material has been altered using genetic engineering techniques, which is what troubled U.S. District Judge Gilliam S. Haywood Jr., during on Chipotle's motion to dismiss.

"Are you saying that the meat and dairy itself has been altered using genetic engineering techniques? What I'm trying to pin down is literal falseness," Haywood told Gallagher's attorney Lawrence King. "Do the ingredients themselves meet the definition of GMO in the complaint?"

He added, "I'm trying to figure out if you're pleading yourself out of court by defining GMO this way. You've pled a definition of what a GMO is that seems inconsistent with these ingredients being GMOs."

King said the focus should not be on whether the ingredients themselves are GMO-based, but whether Chipotle deceived its customers.

"Our contention is that a consumer is likely to be deceived by the representation in the complaint - 'We are G-M-Over It,'" King said. "They are literally dropping the letters G and M to celebrate the lack of GMOs on the menu, so customers are likely to be deceived."

Chipotle attorney Charles Cavanagh shot back, "How can she plausibly allege that any reasonable consumer believes those animals still contain GMOs?"

Cavanagh argued that a reasonable Chipotle consumer would know the difference between a genetically engineered animal butchered into meat for a Chipotle burrito and the genetically-altered corn used in the feed for that animal.

"A reasonable consumer is capable of deciding what an ingredient is," he said.

Haywood said he would dismiss the complaint for now to give Gallagher and her lawyers a chance to address the difference.

In other Chipotle news, the beleaguered chain - dogged by E. coli, salmonella and norovirus outbreaks and a 42 percent drop of its stock price - said Friday it would close all its stores for a few hours on Feb. 8 for a company-wide store meeting about food-safety practices.

All of the chain's more than 1,900 stores will take part, the company said.

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