Consumers Try Again in Chipotle GMO-Free False Ad Class Action

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On Friday, a California consumer took the opportunity for a second chance and filed her amended complaint over Chipotle’s alleged false advertising of its GMO-free campaign following the lawsuit’s initial dismissal. Last month, the lawsuit was tossed after a federal judge ruled that the consumer had not maintained a consistent definition of “GMO” in her complaint.

Plaintiff Colleen Gallagher explained in her amended complaint that customers understand terms like “non-GMO” and “GMO-free” on food labels and in advertising to refer to products that “are not sourced or derived from genetically engineered foods and methods, such as genetically engineered corn that ends up in corn syrup and beef from a cow that was raised on a diet of genetically engineered or modified food.”

Gallagher further explained that “Consumers have this understanding because of educational efforts by ‘non-GMO’ consumer information sources and certification agencies as well as government authorities.” One such organization she cited was the Non-GMO Project, a non-profit group who has provided outreach efforts to its consumers though its non-GMO labeling program, Gallagher asserted.

“Because of the Non-GMO Project’s work with companies and food producers, through its independent verification program, its Non-GMO Project Verified seal is now found on over 34,700 plant and animal food products with 2, 200 participating brands,” Gallagher said.

Gallagher initially filed the lawsuit against Chipotle last summer saying that Chipotle continues to serve meat from animals fed GMOs as part of their diet and that the restaurant’s sour cream and cheese come from dairy farms that feed their animals GMO products. She also claimed that Chipotle still sells soft drinks that contain corn syrup used to sweeten the drinks that is made from GMO corn.

Last month, U.S. District Judge Haywood S. Gilliam Jr. dismissed the lawsuit, ruling that Gallagher’s definition of GMOs did not fit the alleged falsely advertised foods, in particular dairy products and meat from animals raised on genetically modified feed.

Gallagher attempted to clarify her position in her amended complaint saying that the federal government has taken action to help educate consumers that “non-GMO’ labeling on animal products means that the animals were not raised eating a genetically modified diet.

“For example, in mid-2013. The Food Safety and Inspection Service, the division of the U.S. Department of Agriculture charged with regulating the safety and proper labeling of meat, poultry and egg products, approved the Non-GMO Project Verified label claim for meat and liquid egg products,” Gallagher asserted.

To further support her position, Gallagher said a consumer research firm recently surveyed a thousand individuals nationwide on her behalf, and the results of the study confirmed that reasonable consumers “would also expect and understand that a restaurant claiming its food did not contain GMOs would not serve food from animals fed with GMOs.”

Gallagher also included in her amended complaint the items she purchased: chicken and beef burritos with cheese, sour cream and other condiments. In the first complaint, the judge said she had not shown she lost money on the food because she did not specifically state what items were purchased.

The plaintiff further claimed that she is still interested in visiting Chipotle in the future, as previously the judge said if she failed to allege her plans to be a Chipotle customer in the future, any changes to Chipotle’s business practices would not benefit her.

In Gallagher’s amended complaint, six other plaintiffs were added seeking to represent additional Classes of consumers to now inclusively represent California, Maryland, Florida and New York consumers who dined at Chipotle since April 2015 and who alleged that Chipotle violated the respective state consumer protection laws.

Gallagher is represented by Laurence D. King, Linda M. Fong, Matthew B. George, Mario M. Choi, Frederic S. Fox and Donald R. Hall of Kaplan Fox & Kilsheimer LLP.

The Chipotle GMO-Free False Advertising Class Action Lawsuit is Gallagher v. Chipotle Mexican Grill Inc., Case No. 3:15-cv-03952, in the U.S. District Court for the Northern District of California.