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Are Chipotle’s ‘GMO-Free’ Claims Deceptive?

10 May, 2016 By: Jeffrey Richter, Arthur Yoon


Chipotle Mexican Grill Inc. claims to be the first national restaurant company to disclose the so-called genetically modified organism (GMO) ingredients in its food, and the first to cook only with non-GMO ingredients. According to Chipotle on its website, GMO is created by inserting genes from one species into the DNA of another, which can result in a plant with characteristics that would not occur naturally, such as producing pesticides or the ability to withstand high doses of chemical herbicides. Chipotle removed GMO ingredients because, according to it: scientists are still studying the long-term implications of GMO; the cultivation of GMOs can damage the environment; and Chipotle should be a place where people can eat food made with non-GMO ingredients.

After dining at a Chipotle restaurant, Colleen Gallagher filed a complaint in U.S. District Court in California, alleging that Chipotle made deceptive representations that all of its food products contained non-GMO ingredients and that Chipotle had failed to disclose that its customers were consuming products with GMO ingredients. The primary evidence in a false advertising case is the advertising itself. To that end, the plaintiff alleged that Chipotle made the following specific GMO claims: it prepares its food using only non-GMO ingredients; all of its food is non-GMO; and when it comes to Chipotle’s food, genetically modified ingredients “don’t make the cut.”

In her complaint, Gallagher considered “GMO” as “any organism whose genetic material has been altered using genetic engineering techniques.” She alleged that Chipotle’s GMO claims were misleading for two reasons: because Chipotle sells meat and dairy products derived from animals that consume genetically modified food; and because Chipotle sells third-party soft drinks that contain GMOs.

The court determined that dismissal of the complaint was appropriate where the advertisement itself makes it impossible for the plaintiff to prove that a reasonable consumer is likely to be deceived by Chipotle’s advertisements. The court found that the plaintiff’s definition of “GMO” seemed inconsistent with her interpretation of Chipotle’s GMO claims.

Specifically, the plaintiff had not alleged that any of the ingredients used by Chipotle fit her definition of “GMO” – i.e., she had not alleged that they had been altered using genetic engineering techniques. And there was no allegation that the animals from which Chipotle’s meat and dairy ingredients were produced were genetically modified. There was no dispute that the meat and dairy ingredients used by Chipotle were not themselves genetically engineered in any fashion. Rather, the plaintiff contended that the reasonable consumer would interpret “non-GMO ingredients” to mean meat and dairy ingredients produced from animals that never consumed any genetically modified substances. The court questioned whether the complaint plausibly supported such an interpretation. Importantly, Chipotle explicitly disclosed on its website the facts that it sold soft drinks that contained GMOs and that it uses meat and dairy products derived from animals that consumed genetically modified food. Because Chipotle actively defined what its use of GMO means, no reasonable consumer could be deceived according to the court.

Finally, the plaintiff recognized in her complaint that an entirely different term – “organic” – is used to describe non-GMO meat and dairy products sourced from animals that did not consume genetically modified feed. Chipotle could only use the term “organic” with respect to meat and dairy products that come from animals not fed with genetically modified crops. If Chipotle were to represent that its ingredients are “organic,” then, perhaps Gallagher’s claim would be more plausible. But nowhere in the complaint did the plaintiff allege that Chipotle represented its ingredients as “organic,” or explain why the reasonable consumer would interpret “non-GMO” to mean the same thing as “organic.” Accordingly, the court dismissed the plaintiff’s lawsuit for her failure to plead a valid legal and factual theory as to why a reasonable consumer would be likely to be deceived by Chipotle’s GMO-free claims.

Chipotle’s legal battle over GMO-free claims is not over. Another customer has filed a similar lawsuit against it in a U.S. District Court in Florida. In that case, the judge rejected Chipotle’s request to dismiss the lawsuit. A trial date is set for November.

Jeffrey Richter and Arthur Yoon are attorneys at Blank Rome LLP. They can be reached at (424) 239-3400 or via E-mail at jrichter@blankrome.com and ayoon@blankrome.com.


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