Claims in high-profile false advertising case vs Dannon not plausible, court rules

Judge tosses ‘speculative’ lawsuit over ‘all-natural’ status of dairy products from cows fed GM feed

By Elaine Watson contact

- Last updated on GMT

Claims in all-natural GMO lawsuit vs Dannon not plausible, court rules
A judge has granted Dannon’s motion to dismiss a high-profile false advertising lawsuit alleging shoppers were misled by its ‘all-natural’ claims on dairy products from cows that may have eaten GM feed.

In a complaint against Dannon* ​filed in New York last year, plaintiff Polly Podpeskar alleged that reasonable consumers would not expect yogurts labeled ‘all-natural’ to use milk from cows likely fed a diet containing genetically engineered soy or corn.

The case has been watched closely given how widely 'natural' claims are used on dairy products from cows that may have consumed GM feed.

To support her claims, Podpeskar cited – among other things – consumer survey data suggesting that most US consumers believe a ‘natural’ label on meat or poultry products should mean that the animals’ feed contained no GMOs.

She added: “Reasonable consumers believe that if a cow consumes GMO grass, corn, or soy and then produces milk, the milk is not all natural, and products derived from the milk, such as yogurt, are likewise not all natural.”

Dannon: This daisy-chained, twice ‘derived’ allegation is unsupported

In its motion to dismiss the case, however, Dannon (now part of DanoneWave​) said no reasonable consumer would follow Podpeskar’s “daisy-chained”​ logic.

It argued: “This daisy-chained, twice ‘derived’ allegation is unsupported by any authority and must fail. Plaintiff does not allege how any purportedly ‘unnatural’ characteristic moves through the supply chain from the feed, to the cows, to the milk, to the products, or articulate how a reasonable consumer would be misled. 

"The mere consumption of genetically modified food simply cannot affect the genetic makeup of the organism consuming it.”

Moreover, the logic deployed in the lawsuit “has not been adopted by the FDA and has been rejected by both courts and Congress​,” argued Dannon, which also noted that federal GMO labeling legislation​ signed into law last year by President Obama does not extend GMO labeling to products made from milk or meat from animals fed GM feed.

Judge: Plaintiff’s argument is ‘too speculative’

In a December 3, 2017 order dismissing the case that is likely to be viewed with some relief by many dairy companies, US district judge Katherine B Forrest agreed with Dannon, noting that a court handling a similar false advertising lawsuit about ‘non-GMO’ claims on dairy products fed GM feed (Gallagher v. Chipotle Mexican Grill​) rejected a similar claim at the pleading stage.

As in Gallagher, plaintiff’s claims here should be dismissed,” ​said Forrest.

“There is no legal support for the idea that a cow that eats GMO feed or is subjected to hormones or various animal husbandry practices produces ‘unnatural’ products; furthermore Dannon does not specifically represent that its products are either GMO-free or not given hormones or antibiotics.

“The court therefore finds plaintiff’s argument too speculative to state a plausible claim and grants defendant’s motion to dismiss.”

*The case is Polly Podpeskar v Dannon Company Inc, 7:16-cv-08478 filed in the southern district of New York on October 31, 2016. 

New federal GMO labeling legislation​ ​(the details of which are being thrashed out by USDA​) will not​ require GMO labeling on milk or meat from animals fed GM feed. However, it does not make any reference to whether you can call such products ‘natural’ or ‘all-natural.’

The FDA surprised many stakeholders by announcing a probe​ ​into what ‘natural’ should mean on a food label in 2015, prompting a deluge of feedback​, ​but has not said when it plans to report back.

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