Kashi Loses Bid to Dismiss GMO Mislabeling Class Action Lawsuit

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Kashi Co. failed in its motion to dismiss the class action lawsuit accusing the company of including genetically modified organisms (GMOs) in products it labels as “all natural,” according to a ruling made by a federal judge finding that Kashi’s argument that a U.S. Food and Drug Administration (FDA) policy preempts the lawsuit does not apply.

In May 2012, lead plaintiffs Katrina Garcia, Laura Eggnatz, and Julie Martin alleged in their class action lawsuit that both Kashi Co. and its parent company Kellogg Co. mislead consumers by labeling certain Kashi brand food products as “all natural” and “containing no artificial ingredients,” while the products actually contain various genetically modified organisms. In January of this year, Kashi filed a motion to dismiss the class action lawsuit arguing that FDA policy preempted the plaintiffs’ claims.

“Defendants argue that Plaintiffs’ claims are preempted by federal law and/or policy. They offer four separate arguments in support: first, they argue that Plaintiffs’ GMO-based claims are preempted by FDA policy and regulations; second, they argue that Plaintiffs’ GMO-based claims conflict with FDA regulations governing the identification of common ingredients; third, they appear to argue that two cases from other districts support the conclusion that Plaintiffs’ challenge to the ‘all natural’ representation on the product packaging is preempted; and fourth, they argue that Plaintiffs’ ‘claims against vitamins and hexane-processed soy are preempted’ because ‘the FDA permits ‘natural’ foods to contain synthetic ingredients and processing aids as long as they are normally expected in food,’” U.S. District Judge Joan A. Lenard wrote in her order dismissing the Kashi class action lawsuit.

Judge Lenard rejected these arguments, pointing out in her order that Kashi’s “argument is based on a misreading of the [second amended complaint]: the [second amended complaint] does not allege that Defendants are required to disclose the presence of GMOs on the packaging of their products, as Defendants assert; rather, the [second amended complaint] merely alleges that the ‘all natural’ representation currently on the packaging would, and does, mislead reasonable consumers.” Judge Lenard further pointed out, “The FDA follows a policy of not taking enforcement action charging that a product labeled as ‘natural’ is misbranded, as long as the product has no ‘added color, synthetic substances and flavors.’”

“The consumers have sufficiently pled their claims and have alleged which products they purchased, where and when, so the claims cannot be dismissed for that reason,” Judge Lenard continued. “To conceive how the [second amended complaint] could possibly be pled with any more particularity strains the imagination.”

Kellog was successful in arguing that they should not be included as defendants in this class action lawsuit because Kashi cannot be considered a “mere instrumentality” of their parent company, Kellogg, according to the order, and therefore cannot be held liable.

The lead plaintiffs are represented by Howard W. Rubinstein of The Law Offices of Howard W. Rubinstein and Angela Arango-Chaffin of The Florida Chaffin Law Firm.

The Kashi “All Natural” Mislabeling Class Action Lawsuit is Gabbamonte, et al. v. The Kellogg Company, et al., Case No. 1:12-cv-21678, in the U.S. District Court for the Southern District of Florida.

UPDATE: On Sept. 4, 2015, a Florida federal judge granted preliminary approval to the Kashi GMO labeling class action settlement.

UPDATE 2: On July 30, 2016, Top Class Actions viewers who submitted timely and valid claims for the Kashi settlement started receiving checks worth as much as $45.60!