Food Court Report: Consumers and Industry Will Be Paying Attention to Gallagher v. Chipotle Mexican Grill
On April 27, 2015, Chipotle announced that it had achieved its goal of ending its use of ingredients from genetically modified organisms (GMO).1 Commentators were quick to point out that if Chipotle had truly followed through on its "no genetic modification" promise, it would be limited solely to wild berries, wild game, wild mushrooms, and wild-caught fish and shellfish, because most food is genetically modified.2
Within just a few months of the press release, the company faced a class action law suit filed on behalf of consumers alleging that the claims violated California consumer protection laws.3 The complaint alleges that Chipotle's GMO free claim was deceptive because their meat and dairy products allegedly come from animals that consumed GMO products. The complaint accuses Chipotle of capitalizing on the unhealthy, negative perception behind GMO foods with its GMO free claim. The complaint also asserts that consumers are willing to pay more for non-GMO products because the safety or benefit of eating genetically modified foods has been questioned, and because of the perception that GMOs are unnatural and harm the environment.
The complaint is likely to be the first in a series of litigation that will shape how the courts handle "GMO" related claims on food. In recent years, the courts have seen litigation over claims containing the words "all natural", "natural", "organic", and "trans-fat." Like the cases against companies asserting those types of food product claims, plaintiffs challenging GMO related claims will likely face challenges in areas such as standing, preemption, primary jurisdiction, and class certification.
In its motion to dismiss, Chipotle argues that no reasonable consumer would be deceived by Chipotle's use of the term "non-GMO ingredients." This is important because claims under California's Consumer Legal Remedies Act, False Advertising Law, and California's Unfair Competition Law are decided on whether a reasonable consumer would have been deceived.
At the heart of the controversy is the apparent lack of consensus regarding the term "GMO" as applied to foods that have been derived from animals that have consumed GMO containing feed. Another issue concerns whether there is any DNA of a GMO in the meat being served. These issues, and others, will likely be fleshed out in this or other similar litigation.
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1 Press Release, Chipotle Mexican Grill, Chipotle Becomes the First National Restaurant Company to Use Only Non-GMO Ingredients (Apr. 27, 2015), http://ir.chipotle.com/phoenix.zhtml?c=194775&p=irol-newsArticle&ID=2040322.
2 Henry I. Miller, Chipotle: The Strangest Restaurant Menu Ever, FORBES, Apr, 27, 2015, http://www.forbes.com/sites/henrymiller/2015/04/27/chipotle-the-strangest-restaurant-menu-ever/
3 Gallagher v. Chipotle Mexican Grill, Inc., 15-CV-03952-HSG (N.D. Cal. Aug. 28, 2014).