Judge to General Mills: The courts, not the FDA, can decide if GMOs belong in ‘100% natural’ products

By Elaine WATSON

- Last updated on GMT

Latest in class action over natural claims on Nature Valley bars, GMOs

Related tags General mills High-fructose corn syrup Class action Plaintiff

A federal judge handling three lawsuits vs General Mills over ‘100% natural’ claims on Nature Valley products claimed to contain GMOs and other allegedly ‘un-natural’ ingredients says the courts are perfectly capable of deciding if consumers have been misled, and there is no need to refer this matter to the FDA.

In two similar cases filed in California, plaintiffs Gabriel Rojas and Sean Bohac argued that the ‘100% Natural’ description is deceptive and misleading because the products contain ingredients from genetically engineered soy and corn.

In a third case backed by the Center for Science in the Public Interest (CSPI), plaintiff Judith Janney et al argued that the natural claims were deceptive because the products contained highly processed ingredients such as high fructose corn syrup, maltodextrin, and high maltose corn syrup.

What a ‘reasonable consumer’ thinks does not involve answering technical questions or scientific expertise

General Mills had sought to dismiss or/and stay the lawsuits on primary jurisdiction grounds, arguing that the FDA should determine the ‘natural’  issue once and for all and stop such cases clogging up the courts.

This argument has gained some credence recently after judges handling three similar cases (Cox v Gruma Corp; Van Atta v Gen Mills; ​Barnes v Campbell Soup) agreed to stay proceedings on primary jurisdiction grounds to give the FDA time to make a determination on ‘all-natural’ claims and GMOs specifically.

Judge: No one knows how the FDA will respond, if it responds at all

The issue of whether GMOs belong in ‘all-natural’ products - which is at the center of a growing number of class action lawsuits against big food brands - has also featured heavily in the recent debate over GMO labeling. For example, some state-led GMO labeling initiatives stipulate that products containing GMOs should not be labeled as ‘natural’.

However, most judges handling all-natural cases disagree with this approach, insisted US district judge William H Orrick in October 10 orders denying General Mills’ request for a three-month stay in the Bohac v Gen Mills and Janney v Gen Mills cases.

He added: “A stay... is more likely to delay justice, slow the resolution of the matter, and make this litigation more expensive in the long run. No one knows how the FDA will respond, if it responds at all.”

Finally, in his October 9 order on the Rojas v General Mills case, Orrick said the courts were in any case capable of judging this issue: “This case primarily requires asking whether a ‘reasonable consumer’ would be misled by the challenged statements. What a ‘reasonable consumer’ thinks does not involve answering technical questions or scientific expertise."

The FDA definition of natural (which is non-binding) refers to the absence of 'artificial or synthetic' ingredients, while USDA says a natural product must contain ‘no artificial ingredient or added color and is only minimally processed’

This is not a particularly complicated issue inappropriate for a court to address

He granted in part and denied in part General Mills’ motion to dismiss the case, rejecting (with leave to amend) most of the plaintiff’s allegations of breaches of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act except with regard to claims about Nature Valley Oats and Honey and Dark Chocolate Peanut Butter crunchy granola bars “to the extent that any alleged misrepresentation is based on their wrappers and containers”.

The cases are: Gabriel Rojas et al v. General Mills 4:12-cv-05099; Sean Bohac v. General Mills 3:12-cv-05280; and Judith Janney, et al. v. General Mills 4:12-cv-03919. 

Click here​ to read our interview with Pierce Gore, a leading plaintiff's attorney targeting large food companies with proposed class action lawsuits over product labels.

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