September 19, 2020

Volume X, Number 263

September 18, 2020

Subscribe to Latest Legal News and Analysis

September 17, 2020

Subscribe to Latest Legal News and Analysis

September 16, 2020

Subscribe to Latest Legal News and Analysis

$6.5 Million Settlement Reached on Eve of Trial in Class Action Lawsuit Against Chipotle Over the Meaning of “Non-GMO”

As previously covered on this blog, a plaintiffs’ class action lawsuit was filed against Chipotle in the “Food Court” (Northern District of California) in connection with the chain’s nationwide advertising campaign premised on a pledge to serve only “non-GMO” foods.  On October 1, 2018, the court certified three classes of consumers, in California, Maryland, and New York, who claim to have purchased food at Chipotle advertised as “non-GMO,” but which contained meat and dairy ingredients from animals that had consumed genetically modified (GM) feed.  The issue is whether reasonable consumers would have been deceived by such advertising.

On September 11, 2019, just days before the scheduled trial date of September 16, 2019, the plaintiffs asked the court to approve a deal in which Chipotle has agreed to pay $6.5 million to settle the false advertising claims.  As part of the settlement, the three classes, in California, Maryland, and New York, would be consolidated into a single class consisting of all U.S. residents who purchased Chipotle food during the class period from April 27, 2015 to June 30, 2016.  Class members would receive refunds of $2 per meal for up to 5 meals without documentation and up to 10 meals with documentation, for a total limit of 15 meals per household.  The four class representatives would receive $5,000 each.  The attorneys would receive fees of $1.96 million and out-of-pocket expenses of up to $650,000.

While Chipotle has discontinued the advertising at issue, the debate over the meaning of “non-GMO” is certain to continue.  As discussed here, the Non-GMO Project sponsors labels certifying adherence to standards that define the meaning of “non-GMO,” which would clear up the potential for consumer misunderstanding of the scope of the “non-GMO” claim, as was at issue in the Chipotle lawsuit. However, according to a Citizen Petition to the Food and Drug Administration (FDA) dated September 24, 2018 by the Information Technology & Innovation Foundation (ITIF), even a “non-GMO” label that is clear on the scope of the claim may mislead and deceive consumers about non-existent differences in health and safety of the labeled food and should, therefore, be prohibited.  FDA has not yet taken substantive action on the Citizen Petition and is unlikely to do so in the near future.

© 2020 Keller and Heckman LLPNational Law Review, Volume IX, Number 259


About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...