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Volume XII, Number 146

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Lawsuit Challenges Gerber Non-GMO Claim

  • A class-action lawsuit filed at the end of last year alleged that Non GMO (genetically modified organism) claims on many of Gerber’s baby food products are false and misleading because the products contain ingredients derived from genetically modified crops and protein and/or dairy sources derived from cows raised on genetically modified feed.

  • The lawsuit alleges that Non GMO and similar claims (e.g., GMO free) are understood by consumers in a manner consistent with the definitions set forth by the Non GMO Project, a non-profit organization that offers a “Non GMO Project” certification which requires that the certified foods contain no genetically modified processes or inputs (e.g., animal food products derived from animals fed genetically engineered feed). Plaintiff credits the widespread use of the Non GMO Project label and the educational outreach efforts of the organization with aligning consumer expectations with the Non GMO Project Standard.

  • The case presents interesting issues because “Non GMO” has no defined regulatory meaning. Disclosure of the presence of genetically modified material in foods is regulated by USDA’s National Bioengineered Food Disclosure Standard (BE Standard), which mandates labeling of food that contains bioengineered material (the BE Standard uses the term “bioengineered” instead of GMO). However, claims regarding the absence of genetically modified material are regulated by FDA and, while FDA has issued a guidance document regarding these voluntary absence of genetically modified material claims, the document does not define what it means to be “Non GMO.” In fact, the Guidance discourages (but does not prohibit) the use of the term GMO in favor of terms such as genetically engineered and further recommends against the use of “Non GMO” and similar claims because of the potential substantiation challenges.

  • Compounding the difficulty of determining the meaning of Non GMO is the fact that the absence of a required bioengineered disclosure (under the BE Standard) does not mean that a food is necessarily “Non GMO.” For example, as at issue here, a food sourced from animals fed genetically modified/GMO feed is not required to be labeled as bioengineered under the BE Standard, but it would not meet the Non GMO Project’s definition of Non GMO. For our reporting on a legal challenge to the BE Standard, see our prior post.

  • We will monitor and report on this case and any other developments on the meaning of Non GMO and similar claims.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 25
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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...

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