Debate over “GMO-free” branding intensifies

By Joan Conrow

October 4, 2018

The debate over “GMO-free” branding is heating up in the United States, with advocates on both sides of the issue claiming it’s deceiving and misleading consumers.

On one end of the spectrum, attorneys are pursuing a class action suit against Chipotle Mexican Grill Inc., arguing it deceived consumers by labeling meat and dairy products produced by animals that consumed genetically modified feed as GMO-free.

On the other, the Information Technology and Innovation Foundation (ITIF) has petitioned the US Food and Drug Administration (FDA) to prohibit the use of the term altogether, also claiming it deceives consumers.

The term has become a potent marketing tool popularized by the Non-GMO Project, a nonprofit organization that charges a hefty fee to certify that food and beauty items are free of genetically modified ingredients. The designation, which has no governmental authority, allows manufacturers to use the group’s monarch butterfly logo on product labels.

According to the group’s website, it has certified 50,135 products. But the butterfly is increasingly appearing on many items that have no GM counterpart, including salt, tea, wheat and a sparkling Italian wine called prosecco.

Though the organization contends it is “giving consumers a choice” and helping them to “change the way our food is grown and made” by voting with their dollars, the ITIF takes a dimmer view of the marketing strategy.

In its “citizen’s petition,” the ITIF contends the Non-GMO Project butterfly logo “wrongly stigmatizes so-called ‘GMOs’ and in so doing misleads consumers.” The petition argues the group makes false claims about food safety and risks and asserts that the label constitutes “misbranding under the law.”

Peel Back the Label has also joined the fray with a campaign aimed at “separating fact from fear-mongering in food labeling.”

Meanwhile, a California judge has allowed a class action suit to proceed in challenging Chipotle Mexican Grill Inc. for marketing some of its menu items as GMO-free. The plaintiffs claim the fast food chain deceived consumers by using the designation on  meat and dairy ingredients produced by animals that consumed genetically modified feed.

Plaintiffs’ attorneys argued that consumers wouldn’t expect any GM ingredients in the food chain of items labeled GMO-free. But other attorneys said that such a narrow definition has not been previously applied.

As Bloomberg reported: “This theory of liability is an extreme, outlier position,” said attorney Dale J. Giali of Mayer Brown in Los Angeles. “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 obtained this type of result.”

Indeed, the courts previously dismissed a class action suit filed against Danone SA’s Dannon unit for labeling yogurt “natural” when it was made from milk produced from cows that may have consumed GM feed.  Other suits contesting Chipotle’s non-GMO labels also have been dismissed.

US government agencies are themselves wrestling with the definition of various labeling terms. The FDA is seeking to clarify what constitutes “natural” and “healthy” and received more than 7,600 comments as the public weighed in. The US Department of Agriculture (USDA) is currently developing rules for implementing a labeling law for food products with genetically engineered ingredients. The agency has proposed dropping the term GMO altogether and replacing it with the phrase “bioengineered.”

The issue is further complicated by the results of a recent online survey conducted by GMO Answers, a biotech industry-funded initiative. It seems that 69 percent of consumers are not confident they even know what GMOs are — a finding that raises questions about the value of labels that proclaim their presence or absence.