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New York Court Dismisses False “GMO” Advertising Suit

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).

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume VIII, Number 165



About this Author

Adrian Felix, Bilzin Sumberg Law Firm, Litigation lawyer

Adrian’s academic background in the fields of math and science influenced his methodical approach to problem solving. An Associate in the Firm’s Litigation Group, Adrian focuses his efforts on complex commercial litigation ranging across a diverse spectrum of industries from financial services and construction to hospitality. Further, he has significant experience litigating a variety of business disputes, including breach of contract, misrepresentation, deceptive and unfair trade practices for domestic and international clients. 

Adrian also...

Melissa Pallet-Vasquez, Litigation Attorney, Bilzin Sumberg Law Firm

Melissa Pallett-Vasquez is a Partner in Bilzin Sumberg's Litigation Group. She handles complex commercial litigation matters, class actions and arbitrations, often on behalf of clients from Canada. Melissa represents clients in a number of areas including real estate-related contracts, partnership and joint venture agreements, defense of intentional tort claims, internal investigations and intellectual property litigation. Melissa has substantial courtroom experience, including numerous federal and state trials, as well as international and domestic arbitrations, and in...