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New York Court Dismisses False “GMO” Advertising Suit

Melissa Pallett-Vasquez & Adrian K. Felix

Podpeskar v. Dannon Co., Inc., 16-cv-8478 (KBF) (S.D.N.Y., Dec. 3, 2017)

The Southern District of New York joins the list of federal courts that have recently rejected potential class action suits brought against restaurant and food manufacturers for the alleged false advertisement of their food products as “GMO-free.

A federal judge in New York dismissed a proposed class action against Dannon Company, Inc. (“Dannon”), for violations of Minnesota’s deceptive trade practices, false advertising, and consumer fraud laws, and fraud under various other state laws.  The plaintiff alleged that Dannon systematically advertised its yogurt products as “All Natural,” even though the yogurts contained ingredients derived from animals raised on GMO-rich feed, and, but for Dannon’s misrepresentations, she and other putative class members would not have been willing to purchase the yogurts.

Dannon moved to dismiss the action on the grounds that she failed to state a plausible claim for relief.  The district judge agreed, finding that the plaintiff failed to allege that any of the ingredients used by Dannon in its yogurts had been genetically modified.  The court further noted that:

  • There is no legal support for the plaintiff’s conclusion that the milk that Dannon used to make its yogurt was not ‘natural’ simply because the dairy cows, from which the milk was sourced, were fed genetically-modified corn and given antibiotics and growth hormones
  •  Dannon did not expressly represent that its yogurts were “GMO-free” or not given hormones or antibiotics.  Accordingly, the plaintiff’s claim was too speculative to state a plausible claim.

A number of courts stayed similar actions pending the FDA’s issuance of guidelines related to GMO labeling; however, the decision in Podpeskar follows a recent trend where courts have rejected false “GMO” advertising claims.  See Gallagher v. Chipotle Mexican Grill, Inc., No. 15-cv-03592-HSG (N.D. Cal. Feb. 5, 2016); Reilly v. Chipotle Mexican Grill, Inc., 15-CIV-23425-MGC (S.D. Fla. Apr. 20, 2016), aff’d, 711 Fed. Appx. 525 (11th Cir. 2017).

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