Courts Continue to Struggle Over “All Natural” Claims for GMO Ingredients

With my trial over, I can again focus on this blog.  Sorry for the lack of recent updates.

Some interesting news in the putative class action lawsuit in which Gruma Corporation is charged with falsely and misleadingly labeling its Mission® tortilla chips as “All Natural” because they contain GMOs in the form of corn.  On April 10, 2013, Gruma moved to dismiss based on, among other things, the primary jurisdiction doctrine, arguing that the Court should defer to the FDA based on its “unique expertise and resources suited to resolving the issues presented by Plaintiff’s claims.”  As framed by Gruma:

[R]egulation of foods derived from bioengineered plants, including the labeling of those foods, is a matter in which the FDA has experience, specialized resources, and enforcement methods not available to courts.  The agency also has extensive experience with the definition of “natural.”  The issues raised by Plaintiff’s claims thus come within two spheres of FDA regulation and enforcement activity.  At the same time, however, the agency has not as yet explicitly articulated rules governing the intersection of those two spheres.  This case consequently falls squarely within the primary jurisdiction doctrine, which “allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”

Subsequently, on June 7, 2013, District Court Judge Yvonne Gonzalez Rogers issued a “tentative ruling” in favor of Gruma based on primary jurisdiction with the parties still having the opportunity to present oral argument.  The tentative ruling observed that:

[T]he parties appear to be in agreement that the FDA has not addressed, even informally, the question of whether foods containing GMO or bioengineered ingredients may be labeled “natural” or “all natural,” or whether GMO or bioengineered ingredients would be considered “artificial or synthetic.”  Thus, as Plaintiff concedes, “[t]he [First Amended Complaint] identifies a gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs, laying out how there is no direct regulation by the FDA of the term ‘natural,’ nor any requirement that a company disclose on a food product’s label whether it contains GMOs.”

The court thus noted that deference to the FDA appeared to be the appropriate course.   After oral argument on June 11th, however, the court ordered supplemental briefing before it rendered a final ruling.

The court’s inclination to defer to the FDA, however, is continued evidence that courts realize they are ill equipped to make what is ultimately a policy-based determination on whether GMO ingrediants are “natural.”