Case 4:21-cv-09940-JSW Document 1 Filed 12/22/21 Page 1 of 61
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`Plaintiff,
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Sean L. Litteral (State Bar No. 331985)
`Julia K. Venditti (State Bar No. 332688)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
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` slitteral@bursor.com
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`jvenditti@bursor.com
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FAITH NORMAN, individually and on behalf of
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`all others similarly situated,
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`GERBER PRODUCTS COMPANY,
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` Defendant.
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` Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:21-cv-09940-JSW Document 1 Filed 12/22/21 Page 2 of 61
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`Plaintiff Faith Norman (“Plaintiff”) brings this action on behalf of herself and all others
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`similarly situated against Defendant Gerber Products Company (“Gerber” or “Defendant”).
`Plaintiff makes the following allegations pursuant to the investigation of her counsel and based
`upon information and belief, except as to the allegations specifically pertaining to herself, which is
`based on personal knowledge.
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`NATURE OF THE ACTION
`1.
`This is a putative class action lawsuit against Defendant for cheating consumers by
`uniformly advertising, marketing, and selling nutritional food products under the brand name
`“Gerber” (collectively, the “Products,” enumerated below), each of which prominently features the
`representations “Non-GMO,” or similar claims related to the absence of ingredients derived from
`genetically modified organisms (“GMO”) (collectively, the “Non-GMO Claims”). However,
`contrary to Defendant’s claims, each of the purportedly “Non-GMO” Products do, in fact, contain
`ingredients that are derived from genetically modified food sources and therefore constitute GMOs.
`2.
` Defendant prominently labels every Product sold in the United States as “Non-
`GMO.” Defendant does this because consumers perceive all natural foods as better, healthier, and
`more wholesome. Indeed, in recent years, consumers have become significantly more aware and
`sensitive to genetically modified organisms (“GMOs”) in their food. Many consumers want to
`avoid GMOs for a variety of reasons, including, but not limited to, the following: (1) health risks
`associated with ingesting foods derived from genetically modified (“GM”) crops;1 (2) concerns of
`the ingestion of pesticides and other toxins; (3) interest in promoting sustainable living and local
`farming; and (4) negative environmental effects associated with growing GM crops. As a result,
`many consumers, including Plaintiff, try to buy products that are not derived from GMOs, and a
`movement has developed demanding consumer products that are non-GMO products. Thus, the
`market for all natural foods has grown rapidly in recent years, and Defendant seeks to take
`advantage of this trend through false advertising.
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`1 GM crops such as canola, corn, and soy, are crops whose genetic material has been altered by
`humans using genetic engineering techniques. The World Health Organization defines GMOs,
`which include GM crops, as “organisms in which the genetic material (DNA) has been altered in a
`way that does not occur naturally.” Accordingly, GM crops are not natural, but man-made.
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`Case 4:21-cv-09940-JSW Document 1 Filed 12/22/21 Page 3 of 61
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`3.
`But Defendant’s Non-GMO Claims concerning the Products are false, misleading,
`and deceptive to consumers, who reasonably understand such claims to mean that a product was
`produced without genetic engineering and its ingredients are not derived from GMOs.
`Specifically, Plaintiff and consumers reasonably understand Defendant’s Non-GMO Claims to
`mean that Defendant’s Products are 100% free of ingredients derived from GM crops or food
`sources, genetically engineered in a laboratory setting through the use of biotechnologies, or
`sourced from animals that have been raised on GMO feed. Yet, contrary to Defendant’s claims,
`Defendant’s Products are in fact loaded with ingredients derived from GM-crops such as corn and
`soy, and many of Defendant’s Products also contain protein and/or dairy sources derived from
`cows raised on GMO feed. Defendant’s Products also contain numerous artificial ingredients that
`were genetically engineered in a laboratory setting using biotechnologies. Accordingly,
`Defendant’s Non-GMO Claims are misleading and highly deceptive to reasonable consumers.
`4.
`The Products at issue include all Gerber-branded food or drink products that purport
`to be “NON GMO” on the labeling and/or packaging, including, without limitation, Gerber
`Products from the following product lines, products, and/or flavors: Gerber Good Start Soy 2
`Powder Infant & Toddler Formula; Gerber Good Start Soy Infant Formula (including powder,
`ready to feed, and concentrated liquid formats); Gerber Good Start Gentle Infant Formula; Gerber
`Good Start GentlePro Infant Formula (including powder, ready to feed, and concentrated liquid
`formats); Gerber Good Start GentlePro 2 Powder Infant Formula; Gerber Good Start SoothePro
`Powder Infant Formula; Gerber Good Start Gentle Supreme A2 Powder Infant Formula; Gerber
`Good Start Gentle Supreme A2 Toddler Drink; Gerber Good Start Extensive HA Powder Infant
`Formula; Gerber Good Start Grow Powder Toddler Drink; Gerber Supported Sitter 1st Foods,
`DHA & Probiotic Baby Cereal; Gerber Sitter 2nd Foods, Probiotic Baby Cereals (including
`Oatmeal Banana, Oatmeal Peach Apple, Rice Banana Apple, and Powerblend varieties); Gerber
`Oatmeal & Barley Toddler Cereals (including Apple Cinnamon and Bananas & Cream varieties);
`Gerber Toddler Pouches (various flavors); Gerber Lil’ Crunchies
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`flavors); Gerber
`Teether Wheels, Apple Harvest Crawler Snack; and Gerber Mealtime Harvest Bowls (including
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`Case 4:21-cv-09940-JSW Document 1 Filed 12/22/21 Page 4 of 61
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`Garden Tomato, Spanish Style Sofrito, and Pesto varieties) (collectively, the “Products”). As
`noted above, each of these purportedly “Non-GMO” Products contain GMOs.
`5.
`By prominently featuring the Non-GMO Claims on the labeling and/or packaging of
`its Products, Defendant intends to induce consumers to pay more than they would pay for other
`comparable products that are not falsely labeled with Non-GMO Claims, and consumers are so
`induced as a result of these claims. Thus, although (as discussed below) the Products have been a
`marketing sensation and an unmitigated financial success, Defendant’s success has been the result
`of fraudulent, unlawful, and unfair business practices in the marketing and sale of the Products.
`Defendant’s misleading representations and unfair business practices described herein are plainly
`improper and unacceptable—particularly for a company that touts that “You asked, we listened.
`GERBER GOOD START formulas are now all non-GMO.”2
`6.
` For the foregoing reasons, Plaintiff brings this action individually and on behalf of
`similarly situated individuals against Defendant for: (i) violation of California’s Unfair
`Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq.; (ii) violation of California’s
`False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.; (iii) violation of
`California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq.; (iv)
`breach of express warranty; (v) breach of the implied warranty of merchantability; (vi) unjust
`enrichment / restitution; (vii) negligent misrepresentation; (viii) fraud; and (ix) fraudulent
`misrepresentation.
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`PARTIES
`7.
`Plaintiff Faith Norman is a natural person and a citizen of California who resides in
`San Jose, California. At multiple points during 2021, Ms. Norman purchased Defendant’s Gerber
`Good Start 2 from a brick-and-mortar Safeway retail store and a brick-and-mortar Walmart retail
`store located in San Jose. Prior to her purchase, Ms. Norman reviewed the labeling, packaging,
`and marketing materials of her Products and saw the false and misleading claims that, among other
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`2 Layla Katiraee and Kavin Senepathy, “Gerber Formula Goes Non-GMO, But Not Really,”
`Forbes (Feb. 22, 2016), https://www.forbes.com/sites/kavinsenapathy/2016/02/22/gerber-formula-
`goes-non-gmo-but-not-really/?sh=60d556437e79 (last accessed Dec. 20, 2021).
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`things, the Products are purportedly “Non-GMO” infant formulas. Ms. Norman understood these
`claims to be representations and warranties by Defendant that the Products are free of all traces of
`GMOs, do not contain ingredients derived from GM crops, and do not contain any other synthetic
`ingredients created in a laboratory through the use of biotechnologies. Ms. Norman reasonably
`relied on these representations and warranties in deciding to purchase the Products, and these
`representations were part of the basis of the bargain in that she would not have purchased the
`Products, or would not have purchased them on the same terms, if the true facts had been known.
`As a direct result of Defendant’s material misrepresentations and omissions, Ms. Norman suffered,
`and continues to suffer, economic injuries.
`8.
`Defendant Gerber Products Company (“Defendant” or “Gerber”) is a Michigan
`corporation with its principal place of business in Arlington, Virginia. Defendant sells its baby
`food and infant formulas under the eponymous “Gerber” brand name. Gerber’s baby food products
`and infant formulas are sold nationwide, including throughout the State of California.
`JURISDICTION AND VENUE
`9.
` This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`1332(d) because there are more than 100 class members and the aggregate amount in controversy
`exceeds $5,000,000.00, exclusive of interest, fees, and costs, and at least one Class member is a
`citizen of a state different from Defendant.
`10.
`jurisdiction over Defendant because Defendant
`This Court has personal
`purposefully availed itself of this forum by conducting substantial business within California such
`that Defendant has significant, continuous, and pervasive contacts with the State of California.
`11.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
`does substantial business in this District and a substantial part of the events giving rise to Plaintiff’s
`claims took place within this District, as Plaintiff purchased the Products in this District and is a
`citizen and resident of this District.
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`Case 4:21-cv-09940-JSW Document 1 Filed 12/22/21 Page 6 of 61
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`FACTUAL ALLEGATIONS
`A.
`Background on Genetically Modified Organisms (“GMOs”)
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`The World Health Organization defines genetically modified organisms (“GMOs”)
`as “organisms in which the genetic material (DNA) has been altered in a way that does not occur
`naturally.”3
`13.
`Genetic modification (“GM”), also called genetic engineering, biotechnology, or
`bioengineering, is the process scientists use to make GMOs. It is an artificial laboratory-based
`technique that is specifically designed to enable the transfer of genes between unrelated or distantly
`related organisms. It includes any process in which genetic material is artificially manipulated in a
`laboratory, and may involve creating combinations of plant, animal, bacteria, and virus genes that
`do not occur in nature or through traditional crossbreeding methods. Genetic engineering also
`includes newer forms of biotechnology such as CRISPR, TALEN, RNAi, ODM, and gene drives.
`These techniques confer new properties or “traits” that are not naturally present in the organism.
`When incorporated into the DNA of an organism, genetically modified genes modify the functional
`characteristics – the traits – of an organism.
`14.
`GM crops, such as canola, corn, and soy, are crops whose genetic material has been
`altered by humans using genetic engineering techniques. GM crops are not natural, but man-made.
`There are wide-ranging controversies related to GM crops, including health risks from ingesting
`GM foods and negative environmental effects associated with growing GM crops.
`15.
`As of 2021, approximately 93% of canola, 92% of corn, and 94% of soybeans
`grown in the United States are genetically modified, as are 95% of sugar beets.4
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`3 World Health Organization (WHO), 20 questions on genetically modified foods (2002), available
`at http://www.who.int/foodsafety/publications/biotech/20questions/en/index.html.
`4 See Center for Food Safety, “About Genetically Engineered Foods,”
`https://www.centerforfoodsafety.org/issues/311/ge-foods/about-ge-
`foods#:~:text=Center%20for%20Food%20Safety%20seeks,human%20health%20and%20the%20e
`nvironment (last visited July 19, 2021); see also https://www.nestleusa.com/gmos/about-
`genetically-modified-crops-in-the-
`us#:~:text=Approximately%2093%20percent%20of%20the,is%20from%20genetically%20modifie
`d%20seed.&text=Corn%20is%20the%20most%20widely,is%20from%20genetically%20modified
`%20seeds (last visited December 21, 2021).
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`Corn (Approx. 92% of U.S. crop is GMO) – Corn is genetically modified to
`(a)
`be resistant to glyphosate or glufosinate herbicides. Most GM-corn is used for human
`consumption. In food products, GM-corn crop is used to produce corn flour, meal, oil, starch,
`modified food starch, corn gluten, corn syrup, and sweeteners such as fructose, dextrose, glucose
`and modified come from corn. Genetically modified corn has been linked to health problems,
`including weight gain and organ disruption.
`Soybeans (Approx. 94% of U.S. crop is GMO) – Soybeans are the most
`(b)
`important crop worldwide for producing oil and protein. Soybean and its processed derivatives are
`used in a multitude of food, groceries, supplements, and cosmetics. Additionally, the remaining
`soy mass is used as protein-rich animal feed for fish, poultry, pigs, and beef. Tolerance to
`herbicides is by far the most important commercial characteristic of GM-soybeans. So, not only
`are soybeans a genetically engineered food crop, but farmers are also forced to use more and more
`pesticides to combat adaptive super bugs and super weeds, thereby creating additional health
`concerns for consumers.
`Sugar Beets (Approx. 95% of U.S. crop is GMO) – Sugar Beets are
`(c)
`genetically engineered to be RoundUp ready, like corn. GM-sugar beets are used in refined sugar
`production, and the leftover fiber is used to feed animals at Concentrated Animal Feeding
`Operations (“CAFO”).5
`16.
`Thus, any of the ingredients derived from domestically produced canola, corn, peas,
`rice, or soybeans are highly likely to contain GMOs, notwithstanding Defendant’s Non-GMO
`Claims or similar product label representations to the contrary.
`B.
`“Non-GMO” Is A Highly Profitable Descriptor
`17.
`Product packaging is a significant vehicle through which the purveyors of natural
`and organic food products communicate material that they believe, and reasonably expect, to be
`important to consumers in making purchasing decisions.
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`5 See GMO 101, A Practical Guide: Potential Sources of Genetically Engineered Ingredients in
`Food, at 244; id. (“Anything not listed as 100% cane sugar is suspect. Look for organic and non-
`GMO sweeteners, candy and chocolate products made with 100% cane sugar, evaporated cane
`juice or organic sugar, to avoid GM beet sugar.”).
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`18.
`The health food market is no longer a niche market. Consumers have been
`increasingly health conscious since the 1970s. They seek out and covet food products that are
`natural and healthy and look for labels that convey these qualities in the foods they choose to
`purchase. According to Natural Foods Merchandiser, a leading information provider for the
`natural, organic, and health food industry, the natural food industry enjoyed over $166 billion in
`revenue in 2019. This means that since 2010, the natural food industry has more than doubled in
`size since it hit $81 billion in 2010. Consumer demand for non-GMO foods is expected to rapidly
`increase into the next decade as well.
`19.
`The designation “non-GMO” appeals to consumers for its health attributes. This
`designation also appeals to reasonable consumers’ interest in protecting the environment,
`promoting sustainable living and local farming, and minimizing people’s and the Earth’s exposure
`to pesticides and other toxins.
`20.
`Any doubt about the money generating power of natural and healthy foods is
`dispelled by the entry and success of large conglomerates in the health food market. For example,
`the well-known Kashi brand is owned by Kellogg, while PepsiCo has recently acquired the natural
`food company, Be&Cheery, for $705 million. Additionally, the Odwalla brand has flourished and
`expanded significantly since its purchase by the Coca-Cola Company in 2001 for $181 million.
`21.
`Indeed, Defendant has acknowledged that, “You asked, we listened. GERBER
`GOOD START formulas are now all non-GMO.”6 Building on this point, Defendant remarked
`that “[b]ased on feedback from parents looking for more non-GM product options, we decided to
`make our formulas without the use of genetically modified ingredients.”7
`C.
`Consumer’s Understanding of GMOs and Non-GMO Claims
`22. While the abbreviated term “GMO” may generally refer to genetically modified
`organisms, when used in food marketing and labeling, terms like “non-GMO” and “GMO free”
`(which are reasonably understood by consumers to be synonymous8) have a broader meaning to
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`6 Katiraee et al., supra note 2.
`7 Id.
`8 In November 2015, the Food and Drug Administration (“FDA”) issued guidelines on the labeling
`of foods derived from genetically engineered plants and grouped the terms “GMO free,” GE free,”
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`consumers in that they convey food products that do not contain and 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. Consumers have this understanding because of educational efforts by “non-GMO” consumer
`information sources and certification agencies as well as government authorities. The successful
`results of their efforts to develop a consumer understanding of “non-GMO” and related terms in
`this manner are demonstrated by market research surveys as discussed below.
`23.
`The Non-GMO Project, for example, serves as one of the leading educational
`providers for consumers given its unique status as North America’s “only third party verification
`and labeling for non-GMO food and products.” In response to increased use of GMOs, the Non-
`GMO Project was formed in the early 2000s with the goal of “creating a standardized meaning of
`non-GMO for the North American food industry.” 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 50,000 food products and with 3,000 participating
`brands.9 Further, it makes significant educational outreach efforts through its Non-GMO Project
`and LivingNonGMO.org websites. Combined, these websites are host to over 200 million visits a
`year. Consumers thus readily and understandably associate the terms “GMO”, “non-GMO,” and
`similar marketing claims, consistently with definitions set by the Non-GMO Project.
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`
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`“does not contain GMOs,” “non-GMO” “and similar claims” together. U.S. Food and Drug
`Administration, Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or
`Have Not Been Derived from Genetically Engineered Plants (Mar. 2019), available at
`http://www.fda.gov/food/guidanceregulation/guidancedocumentsregulatoryinformation/ucm05909
`8.htm#references (emphasis in original). The FDA also warned that the term “free” that is
`associated with these similar claims “conveys zero or total absence” of ingredients derived through
`biotechnology and that these type of claims are “problematic” due to the challenges of
`substantiating such claims. Id. Thus, the FDA took care to appropriately group these commonly
`used “non-GMO” related labeling terms in the same fashion consumers do, demonstrating that
`“non-GMO,” “does not contain GMOs,” and “GMO free” have an identical and synonymous
`meaning to consumers. The FDA also points out that the while the “O” in the acronym GMO
`generally refers to the word “organism” because an entire organism is generally not contained in a
`food (microorganisms in the dairy product yogurt being a cited exception), GMO is generally “read
`as meaning that the food was not derived from a genetically modified organism, such as a plant that
`has been genetically engineered.” Id. (emphasis in original).
`9 See The Non-GMO Project, Verification FAQs, https://www.nongmoproject.org/product-
`verification/verification-faqs/ (last accessed Oct. 18, 2021).
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`24.
`Accordingly, consumers understand that any product or ingredient that is
`contaminated by or with GMOs is not “non-GMO.” And, the Non-GMO Project specifically
`extends its definition of “Non-GMO or No-GM” to any “plant, animal, or other organism whose
`genetic structure has not been altered by gene splicing” and to “a process or product that does not
`employ GM processes or inputs.”10 Per the consumers’ leading industry source, the Non-GMO
`Project states that “animal feed commonly contains High-Risk Inputs” in the form of genetically
`modified or engineered feed. As a result, animal food products (such as meat, poultry, and dairy)
`are included on the Non-GMO Project’s list of High-Risk ingredients. For animal products to be
`properly labeled as “non-GMO,” they must meet a number of stringent requirements, including that
`the animals and poultry be fed seed that is less than 5% GMO for various periods of the animal’s
`life (including the entire life for meat animals other than poultry). Other GMO awareness
`campaigns similarly advise consumers that to avoid GMOs they should avoid “meat, eggs, and
`dairy products that have eaten GMO feed” furthering the consumer understanding that “non-GMO”
`and related marketing, labeling, and advertising claims indicate to consumers that the animal
`products were not raised on genetically modified feed.11
`25.
`The federal government has also taken steps to adopt standards that assist
`companies and consumers with understanding that “non-GMO” labeling means that animal
`products are not raised on GMO derived feed. For example, in mid-2013, the U.S. Department of
`Agricultures’ Food Safety and Inspection Service, tasked 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.12 These government efforts are intended to inform consumers
`that the animal was not raised on a diet that consists of genetically engineered ingredients, like
`
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`10 The Non-GMO Project, Non-GMO Project Standard (Dec. 30, 2020), at 24, available at
`https://www.nongmoproject.org/wp-content/uploads/Non-GMO-Project-Standard-Version-16.pdf
`(last accessed Oct. 18, 2021).
`11 GMO Awareness, Overview, https://gmo-awareness.com/avoid-list/overview/ (last accessed Oct.
`18, 2021).
`12 See Food Liability Law, USDA Approves Non-GMO Label Claim for Meat and Egg Products
`(Jul. 11, 2013), http://www.foodliabilitylaw.com/2013/07/articles/legislation-and-regulation/food-
`labeling/usda-approves-non-gmo-label-claim-for-meat-and-egg-products/.
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`corn, soy, and alfalfa. Accordingly, consumers understandably associate advertising or labeling
`with the terms “non-GMO” or “GMO free” with products whose ingredients have not been tainted
`by GMOs or sourced from animals fed with GMOs.
`26. Market research also supports the fact that consumers understand and expect that
`advertisements and labeling of “non-GMO,” “GMO free,” or related claims have similar meanings
`and would not apply to foods sourced from animals fed with a GMO or a genetically engineered
`diet. For example, a poll of Ohio voters by Public Policy Polling in December 2015 indicated that
`76% of consumers would “[e]xpect that a dairy product labeled as “non-GMO” was made using
`milk from cows that had not been fed any genetically modified feed.”13 Only 11% of respondents
`would not expect such a product to come from cows fed only with non-GMO feed.14
`27.
`As these poll results indicate, “consumer awareness of GMOs is almost universal at
`97%.”15 Consumers reasonably understand food advertised or labeled as “non-GMO,” “GMO
`free,” “does not contain GMOs,” or other similar claims only apply to food that (1) does not
`contain GMOs and is not sourced from, or derived from any GMOs; and (2) does not contain
`animal products such as meat, poultry, pork and dairy that have a diet of GMO feed, GMO
`contaminated feed and/or genetically modified or engineered feed. Consumers also understand that
`the term “food” applies broadly to food and drink, which is also how the FDA defines it. 21
`U.S.C. § 321(f)(1).
`D.
`Consumers Perceive GMOs As Negative And Unhealthy
`28.
`Today, genetically modified crops are used in biological and medical research,
`production of pharmaceutical drugs, experimental medicine, and agriculture. Such crops are
`engineered to, among other things, resist certain pests, diseases, or environmental conditions,
`
`
`13 See The Mellman Group, “Nearly All Voters Continue to Want GMO Foods Labeled,” (Nov. 23,
`2015) http://4bgr3aepis44c9bxt1ulxsyq.wpengine.netdna-cdn.com/wp-
`content/uploads/2015/12/15memn20-JLI-d6.pdf (last accessed Oct. 18, 2021).
`14 See also Center for Food Safety, U.S. Polls On GE Food Labeling (listing other relevant surveys
`regard GMO food labeling and consumer preferences).
`15 “Consumer Awareness of GMOs Continues to Soar,” Non-GMO Project (Aug. 7, 2018),
`https://www.nongmoproject.org/blog/consumer-awareness-of-gmos-continues-to-soar/ (last
`accessed Oct. 23, 2021).
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`reduce spoilage, increase size and yield, taste and look better, and resist chemical treatments. In
`the United States, 94% of the planted area of soybeans, 95% of cotton, and 92% of corn are
`genetically modified varieties.16
`29.
`Since 1996, farmers in animal agriculture (including poultry) have optimized GMOs
`by feeding genetically modified grains (corn) and oilseeds (soybean) to their flocks and herds.17
`Because more than 90% of the corn and soybeans in the United States are raised from genetically
`modified seeds, almost all corn and soybean used in conventional livestock and poultry feed is
`genetically modified. In addition, other genetically modified crops such as cotton, canola, sugar
`beets, and alfalfa are commonly used in animal feed.18 Consequently, most meat and dairy
`products are contaminated with GMOs due to the feed consumed by livestock and poultry and
`cannot be labeled as “non-GMO” without deceiving consumers. Because the safety or health
`impact of food and other goods derived from genetically modified crops has been and continues to
`be hotly debated19, it is no surprise that according to a Pew Research Center survey, only 37% of
`the general public believes that “it is generally safe to eat genetically modified (GM) foods.”20
`30. While the potential environmental and health impact of GMOs has been the subject
`of much scrutiny and debate within the food and science industries, Defendant and other businesses
`
`
`16 United States Department of Agriculture Economic Research Service, Adoption of Genetically
`Engineered Crops in the U.S.(July 9, 2015), http://www.ers.usda.gov/data-products/adoption-of-
`genetically-engineered-crops-in-the-us.aspx.
`17 See National Chicken Council, Genetically Modified Organism (GMO) Use in the Chicken
`Industry (July 5, 2013), http://www.nationalchickencouncil.org/genetically-modified-organism-
`gmo-use-in-the-chicken-industry/.
`18 See GMO Inside Blog, How Pervasive are GMOs in Animal Feed? (July 16, 2013),
`http://gmoinside.org/gmos-in-animal-feed/.
`19 Compare, e.g., European Commission, A Decade of EU-funded GMO Research (2001-2010),
`http://ec.europa.eu/research/biosociety/pdf/a_decade_of_eu-funded_gmo_research.pdf (last
`accessed Mar. 11, 2016), with Non GMO Project, GMO Facts,
`http://www.nongmoproject.org/learn-more/ (last accessed Mar. 11, 2016) (“Meanwhile, a growing
`body of evidence connects GMOs with health problems, environmental damage and violation of
`farmers’ and consumers’ rights.”).
`20 Pew Research Center, Public and Scientists’ Views on Science and Society (Jan. 29, 2015),
`https://www.pewresearch.org/science/2015/01/29/public-and-scientists-views-on-science-and-
`society/ (last visited Oct. 28, 2021).
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`know customers attach an unhealthy, negative perception towards them.21 Defendant’s Non-GMO
`Claims are specifically intended to manipulate consumers into avoiding GMOs, including animal
`food products raised on GMO feed, because of health and environmental concerns.
`31.
`As a result of GMO controversy and consumer concerns, companies have created an
`$11 billion (and fast growing) market for non-GMO products and consumers are willing to pay the
`higher costs associated with non-GMO products due to the negative perception of genetically
`modified foods and because GMO-free ingredients are often more expensive.22 And, there is no
`dispute that GMO labeling is a material and important issue to consumers. In a November 2015
`poll, 89% of likely voters in 2016 would support labeling of GMO foods. And, 77% percent of
`those “strongly favored” such a requirement. These poll results clearly show that Americans want
`to know if the food they are purchasing are non-GMO. Thus, there is no dispute that GMO
`labeling is a material and important issue to consumers.23
`E.
`Defendant’s False, Misleading, And Deceptive Non-GMO Claims
`32.
`In 2018, sales of baby food and infant formula amounted to $6.9 billion, a level that
`has more or less remained unchanged over the past three years.24 That same year, Gerber
`accounted