Frito-Lay, a wholly owned subsidiary of Pepsico, was recently sued for the labeling of certain lines of Tostitos and SunChips products. In a December 14, 2011 complaint filed with the Central District Court of California, the class action plaintiff, Julie Gengo, alleges that certain of the Tostitos and SunChips lines, marketed as being “made with ALL NATURAL” ingredients, are misleading because they are made of genetically modified ingredients.
The products that are the focus of the lawsuit are made with mostly corn and vegetable oil. In fact, corn and vegetable oil “constitute the first two ingredients listed on the nutritional label of each of these products…” According to the latest statistics from the U.S. Department of Agriculture, 88% percent of corn and 94% of soybeans grown in America is genetically modified. Soybean and corn oils are commonly used in processed foods such as chips.
Plaintiff alleges that Frito-Lays’ advertising misleads consumers with product labeling prominently announcing “all natural” ingredients as well as claims on the company’s website. These products, claims the plaintiff, are not “all natural” as they are made from genetically modified ingredients–just ask Monsanto, which defines GMOs as follows:
Plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs. In general, genes are taken (copied) from one organism that shows a desired trait and transferred into the genetic code of another organism.
And Monsanto is not alone, says plaintiff, in defining GMO as something other than nature-made. The World Health Organization and a laboratory that works with agricultural clients also define GMOs as plants altered to express traits in a way that does not naturally occur.
The lawsuit against Frito-Lay is brought by the same law firm that earlier this year sued ConAgra for its Wesson oil line’s “all natural” labeling. After that lawsuit was filed, ConAgra moved to dismiss the case, arguing, among other things, that issues raised by plaintiff were the regulatory territory of Food and Drug Administration (FDA), whose tasks include maintaining and regulating uniformity and consistency in labeling. ConAgra argued that since FDA decided that GMOs are not meaningfully different from foods developed through traditional plant breeding, no label notifying a consumer about the presence of GMOs was required. The Court found that ConAgra has misstated the issue and said, among other things, that:
[Plaintiff's] primary argument is not that ConAgra was required to state whether its products were made from genetically modified plants. Rather, he contends that ConAgra’s affirmative decision to label its products “100% Natural” was misleading, given that the products were made from genetically modified plants
Furthermore, the Court stated:
Here, for example, in the face of silence from ConAgra, a consumer of Wesson Oil who wished to know whether genetically modified plants were used in the product would have had to look beyond the label, because it is not information that the FDA requires be disclosed. Assuming that consumers would reasonably understand the term 100% Natural to mean that no genetically modified plants were used, however, ConAgra’s affirmative representation that the product was 100% Natural would have dissuaded an interested consumer from conducting an investigation. Consequently, it could be found to have been material.
While the complaint was dismissed for other errors, they were not fatal and the Court provided plaintiffs an opportunity to correct those deficiencies. In an email to GMO Journal, the attorney representing the plaintiffs, Andrei Rado, was optimistic about the outcome. “[T]he first round is a victory for plaintiffs.”