Back in August Food Court reported on a lawsuit brought against Con Agra’s Wesson cooking oil for its use of Genetically Modified Organism (GMO) corn (click here). The law firm which brought the Con Agra suit is striking again. Like in the first suit where the claim was the use of GMO corn while claiming “100% Natural” the new lawsuit alleges Frito Lay’s snacks use of GMO corn violates its labeling which claims the snacks are “All Natural.”
According to the complaint, six varieties of Tostitos and four SunChips flavors, each labeled “made with ALL NATURAL ingredients,” are deceiving consumers through package labeling and advertising because the products contain genetically-modified corn and vegetable oils (including corn, soybean, and canola oils).
The Frito case is brought in California a popular forum for food suits. California experienced a boom in labeling lawsuits – Nutella, Con Agra, Kwikset, and Weiner v. Snapple to name a few – all of which provide an easy framework to certify broad classes based on labeling claims. Among these cases was the infamous claim that “labels matter.”
Although class certification may be easier in California this case will prove hard to win. As described in the Wesson law suit the challenges include: proving economic harm (are snacks that don’t make the “all natural” claim cheaper?), did consumers rely on the claim “all natural” (specifically did they rely on it to mean no GMO?), can it be proven that GMO ingredients are included and invalidate the all natural claim. All of these present thorny issues, the latter especially so since the FDA has refused to regulate or define “all natural.”
The name of the game in food labeling lawsuits is to gain class certification in order to leverage a settlement out of deep pockets. The California courts may provide the Frito plaintiffs class certification, but it will be a long road to prove economic harm. As these cases build-up in California also look for an appeal that will stifle these claims with stricter requirements – the California courts cannot become notorious of nebulous class action claims where reliance and economic harm are loosely based on a casual purchasing decision.
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