Last month, a New York federal judge dismissed a proposed class action that alleged Dannon Company, Inc. unlawfully labelled its yogurt products as “natural” when in fact the cows that produced the milk that produced the yogurt may have eaten feed made from corn that was genetically modified or were raised using hormones or antibiotics. The plaintiff, Polly Podpeskar, sued Dannon under four Minnesota state consumer protection statutes, New York common law fraud, breach of express warranty, and a consolidated claim for violations of 40 other states’ consumer protection statutes.
The Court, however, noted numerous holes in Podpeskar’s complaint. Most glaring was that she “alleges very little about Dannon’s specific practices; she does not allege that a single ingredient in the yogurt is not natural.” Dannon also pointed out that the thrust of the complaint was based on unsupported conjectures and “[Podpeskar’s] own speculation that if the cows that produced the milk that Dannon used to make its yogurt ate food with GMOs or were fed antibiotics, that their milk is necessarily not natural, nor is the yogurt that is made from it.” Such speculation was insufficient to survive Twombly’s plausibility pleading standard. Finally, the Court noted that the FDA is currently reviewing the proper regulation of the term “natural” and that the current policy is informal and defines “natural” as “nothing artificial or synthetic . . . is included in, or has been added to, the product that would not normally be expected to be there.”
Takeaway: Current federal law does not require that, in cases where animals have been fed with GMO feed, their end product should be labeled as “GMO.” Such allegations, without more, are also insufficient to qualify those products as “unnatural” for purposes of labelling.