• by Karlene Lukovitz  @KLmarketdaily, September 2, 2015

GMO issues continue to generate headlines, and both positive and negative publicity, for major brands.

Chipotle Mexican Grill has declared that it will "vigorously defend" itself against what it calls a "meritless and unfair" lawsuit accusing the restaurant chain of false advertising in relation to its non-GMO claims.

Meanwhile, Ben & Jerry's is continuing its aggressive support of GMO labeling. The ice cream maker was one of the groups that filed a "friends of the court" brief on Aug. 31 disputing the arguments of the Grocery Manufacturers of America (GMA) and other groups that are fighting the GMO labeling law passed by Vermont in 2014.

B&J's pro-GMO-labeling stance is in direct opposition to that of its parent company, Unilever — which is among the major food and beverage makers opposing state GMO labeling laws and supporting a federal "Safe and Accurate Food Labeling Act" that they position as a realistic alternative to what they dub a "patchwork" of state and local GMO labeling laws.

The suit against Chipotle, filed on Aug. 28 in the Northern District of California by plaintiff Colleen Gallagher, represented by the law firm of Kaplan Fox & Kilsheimer LLP, asserts that Chipotle has violated the state's false advertising and unfair competition laws and consumer legal remedies act. It charges that Chipotle's non-GMO claims are false and deceptive because the chain sells food containing meat and dairy products from animals raised on genetically modified (GM) feed, and soft drinks from Coca-Cola and other makers that contain high fructose corn syrup made with GMO corn. Chipotle makes specific disclosures about these items on its Web site, but the suit contends that the company counts on very few consumers seeing these statements on the site.

Statements issued by Chipotle spokesman Chris Arnold stressed that it is true that "all of the ingredients we use to make our food are non-GMO," and that Chipotle "has always been clear that our soft drinks contained GMO ingredients, and that the animals from which our meat comes consume GMO feed." He added that "that does not mean that our meat is GMO, any more than people would be genetically modified if they ate GMO foods." 

The lawsuit demonstrates that companies making non-GMO claims may be vulnerable to suits, because there are as yet no clear government or legal definitions of non-GMO, so the meaning behind such claims, and consumers' interpretations of the claims, vary. Companies that make GMO-free claims could be subject to litigation if GM technology is used anywhere in their ingredient supply chain, Rebecca Cross, an attorney with BraunHagey & Borden LLP, told Food Navigator. She added that "a safer approach for companies is to represent that they are Non-GMO Project Verified, as this has a standard meaning." However, as others point out, that verification body disqualifies a product if GM is involved at any stage of production — while the Vermont labeling law would exempt meat and milk from GM-fed animals. 

On the Vermont front, on April 27 of this year, a U.S. district court in Vermont denied the legal bid by GMA and other groups to obtain a temporary injunction against the Vermont labeling law.

That law is scheduled to go into effect on July 1, 2016, (followed by a six-month grace period). Although other states, including Connecticut and Maine, have also passed GMO labeling laws, Vermont's is viewed as a critical precedent and test of the issues, because it is the only one to date that contains no "trigger clause." Trigger clauses delay implementation of a law until neighboring states also implement such legislation.

The groups fighting the Vermont law appealed the denial of the temporary injunction. The Aug. 31 court brief filed by Ben & Jerry's, Consumer Reports and others presented their arguments against overturning the injunction denial. 

In the brief, Ben & Jerry's reiterated the same basic pro-labeling arguments it has made all along, including in statements refuting the manufacturers' arguments in the original court action requesting a temporary injunction. Among other points, B&J's says that, contrary to the manufacturers' claims, adjusting labels to accommodate a GMO statement would not raise companies' costs; rather, changing labels is a normal cost of business.

When B&J's was acquired by Unilever 15 years ago, safeguards were put into place to preserve the ice cream company's culture, including its social activism. Unilever has "quietly allowed Ben & Jerry’s to assert itself as a vocal proponent of [GMO labeling] laws, especially in Vermont," Bloomberg noted last year.