- Non-GMO claims in the spotlight again as judge certifies class in Chipotle lawsuit
- Judge: ‘Plaintiffs have provided extrinsic evidence that the ‘non-GMO’ representations at least could be misleading’
- Attorney: 'This theory of liability is an extreme, outlier position'
- Do all Non GMO claims mean the same thing?
- Chipotle’s Non-GMO Push Is Bad Science
- What are GMOs?
- Why do we use GMOs?
- But what are the health risks from eating genetically modified food?
- What about environmental impact?
- Am I eating GMOs?
Non-GMO claims in the spotlight again as judge certifies class in Chipotle lawsuit
The lawsuit* – filed in April 2016 – alleged that Chipotle’s ‘only non-GMO ingredients’ claims on instore signs were “false, misleading, and deceptive,” as it sold meat and dairy products from animals fed GM feed, and fountain drinks from third parties such as Coca-Cola containing sweeteners from genetically engineered corn.
Chipotle, in turn, argued that a strict interpretation of ‘non-GMO’ extending all the way to animal feed was not shared by ‘reasonable’ consumers or federal regulators, and that its website clearly spelled out that “the meat and dairy served at Chipotle are ly to come from animals given at least some GMO feed.”
Judge: ‘Plaintiffs have provided extrinsic evidence that the ‘non-GMO’ representations at least could be misleading’
In a September 29, 2018, order certifying classes of consumers in California and Maryland who bought Chipotle’s products containing meat or dairy during the class period, however, US district judge Haywood Gilliam Jr amended a previous ruling, and argued that “Plaintiffs have provided extrinsic evidence that the ‘non-GMO’ representations at least could be misleading…
“Plaintiffs support their allegations with definitions used by the Non-GMO Project [which says products containing milk and meat from animals fed genetically engineered feed do not qualify for its Non-GMO Project verified seal] and the federal government, as well as market research and surveys into consumers' interpretations of the phrases.”
He added: “Viewed in the light most favorable to Plaintiffs, there is a triable issue of fact as to whether a reasonable consumer could find that Chipotle's ‘non-GMO’ claims implied that the animals that produce Chipotle's meat and dairy ingredients were not fed GMO grain.”
As for Chipotle’s website disclaimer, said the judge, “It would not be reasonable to expect a consumer to search for disclaimers on a website to clarify a purported misrepresentation on in-store signage.”
Attorney: 'This theory of liability is an extreme, outlier position'
A Chipotle spokeswoman told FoodNavigator-USA that, “Unfortunately, we don’t comment on pending litigation.”
So what do food law attorneys that have been following similar cases make of the ruling?
Dale Giali, partner in the LA office of law firm Mayer Brown (which is not involved in the Chipotle case), told FoodNavigator-USA that, “This theory of liability is an extreme, outlier position.”
He added: “Other cases with this theory of liability – that GMO seed in the supply chain is incompatible with a ‘No GMO ingredients’ advertising claim – have not been accepted by the courts or obtained this type of result.
“The new federal GMO disclosure law reflects the far more commonsense, consensus position that GMO feed in the supply chain does not make a by-product ingredient (e.g., cheese from milk from a cow fed with feed made from a GMO crop) genetically modified.
“And many court decisions, including in other identical cases against Chipotle, are in accord,” he claimed, citing two cases (Gallagher v. Chipotle Mexican Grill and Pappas v. Chipotle Mexican Grill) in which judges rejected plaintiffs’ claims that reasonable consumers would share their interpretation of non-GMO as extending back to animal feed.
“The European Union’s GMO disclosure law is also in accord,” he noted. “All of this just makes sense. If a cow eats feed that comes from corn that comes from crops that were grown from GMO seed, that does not mean that the cow is a GMO cow, that the milk from that cow is GMO milk or that the cheese from the milk that comes from the cow is GMO cheese.”
Do all Non GMO claims mean the same thing?
The ruling comes hot on the heels of a lawsuit against Nestlé USA, in which the plaintiff argued that shoppers see a phrase such as ‘No GMO Ingredients’ on a logo and assume it is underpinned by the same standards as those enshrined in the ultra-strict Non GMO Project standard, given how widely used the seal is now on food labels.
Nestlé USA, however, said it did not claim to meet the Non GMO Project standard, pointing out that its ‘No GMO Ingredients’ claims are verified by a different third party: SGS, something that it spells out clearly to consumers on pack.
*The case is Colleen Gallagher v Chipotle Mexican Grill Inc. Case3:15-cv-03952-LB.
The issue of how far up the supply chain GMO and Non GMO labeling should extend – ie. should it extend to processing aids or animal feed? – is the topic of intense debate.
The Non GMO Project for example, takes a strict line, and says products containing milk and meat from animals fed genetically engineered feed do not qualify for its Non-GMO Project verified seal.
However, the new federal GMO labeling law (National Bioengineered Food Disclosure Standard) will ly not require GMO labeling on milk or meat from animals fed GM feed (although the final version has not yet been published).
That said, while the new law defines ‘bioengineered,’ it does not define Non-bioengineered, or non-GMO, with the original statute stressing that foods that don’t comply with the bioengineered definition are not to be considered automatically ‘non-bioengineered,’ or ‘Non-GMO.’
Chipotle’s Non-GMO Push Is Bad Science
Last month, several fast-food chains announced that they would be eliminating the use of antibiotics in their chicken products.
This week, genetically modified organisms (GMO) are the cause de rigeuer in the food industry as Chipotle announced that it successfully eliminated all GMO ingredients from foods served in its U.S. restaurants.
The move, a first for a nationwide chain, is the latest step in a push against farmers and ranchers using science to alter our foods. But should we really be worried about GMOs? Are there legitimate health concerns? Or is this simply rooted in too many viewings of Attack of the Killer Tomatoes?
What are GMOs?
The World Health Organization defines genetically modified organisms (GMOs) as “organisms in which the genetic material (DNA) has been altered in such a way that does not occur naturally.
” One could argue thatalmost all foods we eat today are genetically modified in some way — farmers and ranchers have manipulated the natural breeding process for millennia to obtain desirable traits by cross-breeding plants and selectively breeding animals.
The term GMO, however, is generally reserved for genetic modification through biotechnological procedures used to alter plants on the cellular level, either by directly changing their genes or inserting genes from other organisms into their DNA (recombinant technology).
Either way, the goal is to imbue organisms with characteristics not found in nature. The question is whether or not it's more dangerous when done with cutting-edge equipment in a lab rather than by traditional field practices.
The premiere of Chipotle's original series “Farmed and Dangerous.” Photo: Jason Kempin/Getty Images Entertainment
Why do we use GMOs?
The answer depends on who you ask. On the humanitarian end of the spectrum, genetically modified foods could play a crucial role in combating poverty and food insecurity worldwide.
Low-nutrient staple foods rice can be reinforced with essential vitamins, increasing their nutritional value. Crops can be engineered to grow in harsh conditions and with greater efficiency, which would improve access to food and provide economical boon for local farmers.
Ideally, modified crops would also protect the environment by reducing the negative impact of agriculture.
But on the (completely justified) cynical side, development and use of GM crops can be used by powerful food producing corporations Monsanto, to the detriment of local farmers. The 2008 documentary Food, Inc.
famously alleged that Monsanto intimidates farmers who attempt to “save” heirloom seeds (on its website, in a dedicated section to the Food, Inc.
film, the corporation claims that “Monsanto files suit against farmers who breach their contracts and infringe our patents — not against farmers who did not intentionally take these actions”).
Twenty-five years' worth of scientific studies have shown no evidence of harm from the use of GM crops.
But what are the health risks from eating genetically modified food?
There aren't any. Twenty-five years worth of scientific studies have shown no evidence of harm from the use of GM crops.
A recent report from the European Union found that “the main conclusion to be drawn from the efforts of more than 130 research projects, covering a period of more than 25 years of research and involving more than 500 independent research groups, is that biotechnology, and in particular GMOs, are not per se more risky [to consume] than e.g. conventional plant breeding technologies.” These findings are backed by the American Medical Association, the US National Academy of Sciences, and the World Health Organization — along with other respected scientific research based organizations worldwide. Nevertheless, popular resistance to the product continues to grow. As a result of this, all of the countries in the EU and dozens of other countries worldwide restrict or ban the production and sale of genetically modified foods.
Chipotle founder Steve Ells. Photo: Michael Tran/FilmMagic
In the United States, genetically modified foods are overseen by the US Department of Agriculture, the Environmental Protection Agency, and the US Food and Drug Administration. Prior to entering the commercial market, GM plants undergo safety testing.
This rigorous testing determines whether the foreign DNA poses a risk to human health, and whether new known allergens have been introduced to the food. Labeling is, at this point, only mandatory if the GM product has nutritional or safety properties different from what consumers expect from a specific food.
If the two are “substantially equivalent,” no labeling is federally required. Currently three states have passed mandatory labeling laws — all at different stages of implementation — with ballot initiatives in place in more than 25 others. But labeling proponents may have a fight on their hands: Just last week, the House of Representatives, led by U.S.
Agricultural Secretary Tom Vilsack, will hear a bill that will make GMO labeling a federal consideration, potentially invalidating already-passed state laws.
Meat and dairy served at Chipotle are ly to come from animals given at least some GMO feed.
GMOs have been a part of the American diet for decades, and science suggests it is safe to eat. But the public's documented fear of GMOs is claims propagated by convincing bloggers the Food Babe, who reject scientific evidence in favor of fear mongering.
Supermarkets and restaurants are increasingly pandering to these vocal activists by actions identifying products as containing GMO ingredients or, as is the case with Chipotle, removing them entirely.
(On its ingredients website, Chipotle proclaims that while “the meat and dairy products we buy come from animals that are not genetically modified… it is important to note that most animal feed in the U.S.
is genetically modified, which means that the meat and dairy served at Chipotle are ly to come from animals given at least some GMO feed.”)
What about environmental impact?
There are a few ways GMOs may benefit the environment. GM crops can be modified for improved sustainable agriculture and forestry. Modifying crops to become pest-resistant can also decrease the use of applied chemicals, reducing their spread in the environment.
That said, while research suggests that there are no health concerns associated with GMOs, some ecologists are still wary of possible environmental impacts — hybridization and loss of genetic diversity among them.
According to the Ecological Society of America, “GEOs should be evaluated and used within the context of a scientifically based regulatory policy that encourages innovation without compromising sound environmental management.
” Essentially, move science forward, but don't forget that human health is not the only thing to safeguard.
Photo: Joe Raedle/Getty Images
Am I eating GMOs?
Probably. Scientifically created GMOs have have been on the market worldwide for more than 15 years.
According to the USDA, the majority of crops grown in the United States — corn, soybean, and rapeseed (canola) — are genetically altered versions engineered to resist pests, withstand herbicides, and improve growth.
The USDA National Agricultural Statistics Service estimates that 94 percent of corn and 93 percent of soybeans grown in the US today are from GMO strains. From there, GMO ingredients appear in staples vegetable oil, corn starch, soy flour, and baking powder.
Some academic estimates claim that GMOs are in up to 80 percent of conventional processed foods. They are essentially unavoidable, but if the actions of major chains Whole Foods and Chipotle are any indication, this may be set to change.
As consumers, we have a right to know what is in our food. Dietary content and ingredient lists are a standard part of packaging on everything from carrots to potato chips.
Given that there is no evidence of any functional difference between GMO and traditionally manipulated plants, including that distinction on food labels is akin to notifying people where the crops were harvested.
It comes down to whether people choose to believe the scientific data or their instinctive mistrust of genetic modification.