Case 4:21-cv-09940-JSW Document 37 Filed 01/06/23 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`FAITH NORMAN,
`Plaintiff,
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`v.
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`GERBER PRODUCTS COMPANY,
`Defendant.
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`Case No. 21-cv-09940-JSW
`
`ORDER GRANTING, IN PART, AND
`DENYING, IN PART, DEFENDANT’S
`MOTION TO DISMISS, WITH LEAVE
`TO AMEND, AND SETTING CASE
`MANAGEMENT CONFERENCE
`Re: Dkt. No. 30
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`
`
`
`
`
`Now before the Court for consideration is Gerber Products Company’s (“Defendant”)
`motion to dismiss Faith Norman’s (“Plaintiff”) First Amended Complaint (“FAC”). The Court
`has considered the parties’ papers, relevant legal authority, and the record in this case, and it
`hereby GRANTS, IN PART, and DENIES, IN PART, Defendant’s motion to dismiss, with leave
`to amend.
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`BACKGROUND
`Defendant manufactures and sells baby food and infant formula nationwide. (FAC ¶ 9.) In
`2021, Plaintiff purchased Defendant’s Gerber Good Start Soy 2 Powder Infant & Toddler Formula
`from various retail stores in San Jose. (Id. ¶¶ 7, 44.) The product Plaintiff purchased included the
`graphic depicted below on the front of the packaging (the “Image”):
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`United States District Court
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`Case 4:21-cv-09940-JSW Document 37 Filed 01/06/23 Page 2 of 17
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`In addition to the product she purchased, Plaintiff challenges the labelling on a number of
`other products (the “Products”), which also include the Image on the front of the packaging. (Id. ¶
`4.) On at least some of the Products, the Defendant includes the following statement on the rear of
`the packaging above the ingredients list: “NON GMO Not Made With Genetically Engineered
`Ingredients” (the “Statement”). (See id. ¶ 44; see also e.g., ¶¶ 45-46.)1 The Court refers to the
`Image and the Statement collectively as the “Non GMO Claim.”
`Plaintiff brings this putative class action to challenge Defendant’s Non GMO Claim on its
`Products. (Id. ¶ 1.) Plaintiff alleges that although Defendant uses the Non GMO Claim, the
`Products actually contain ingredients derived from genetically modified food sources and are,
`therefore, not non-GMO. (Id. ¶ 3.) Plaintiff alleges she “reviewed the labeling, packaging, and
`marketing materials of her Products and saw the . . . claims that . . . the Products are purportedly
`‘Non-GMO’” in deciding whether to purchase the Products. (Id. ¶ 7.) Plaintiff believed the
`Products did not contain genetically modified ingredients or ingredients sourced from animals
`derived on GMO feed and alleges she would not have purchased the Products if she had known
`the truth. (Id.)
`Plaintiff alleges nine causes of action against Defendant: (1) violation of California’s
`Unfair Competition Law (“UCL”), Business and Professions Code sections 17200, et seq.; (2)
`violation of California’s False Advertising Law (“FAL”), Business and Professions Code sections
`17500, et seq.; (3) violation of California’s Consumers Legal Remedies Act (“CLRA”), Civil
`Code sections 1750, et seq.; (4) breach of express warranty; (5) breach of the implied warranty of
`merchantability; (6) unjust enrichment/restitution; (7) negligent misrepresentation; (8) fraud; and
`(9) fraudulent misrepresentation. (Id. ¶ 6.)
`The Court will address additional facts as necessary in the analysis.
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`Plaintiff has not included a photograph of the rear side of the packaging for each Product
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`she is challenging and, instead, includes images of the ingredient lists. However, it is possible to
`see portions of the Statement on many of the photographs Plaintiff has included in the FAC.
`(Compare FAC ¶¶ 44-46, with id. ¶¶ 49-51, 54-56.)
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`ANALYSIS
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`A.
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`Applicable Legal Standards.
`Under Federal Rule of Civil Procedure 12(b)(1)2, a district court must dismiss a complaint
`if it lacks subject matter jurisdiction to hear the claims alleged in the complaint. Fed. R. Civ. P.
`12(b)(1). In order for a district court to have subject matter jurisdiction over a plaintiff’s claims, a
`plaintiff must present a live case or controversy, as required by Article III of the U.S. Constitution.
`See U.S. Const. art. III section 2, cl. 1. In order for there to be a case or controversy within the
`meaning of Article III, a plaintiff must have standing to pursue their claims.
`A motion to dismiss is proper under Rule 12(b)(6) where the pleadings fail to state a claim
`upon which relief can be granted. A court’s “inquiry is limited to the allegations in the complaint,
`which are accepted as true and construed in the light most favorable to the plaintiff.” Lazy Y
`Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleading
`standard of Rule 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
`relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
`cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing
`Papasan v. Allain, 478 U.S. 265, 286 (1986)).
`Pursuant to Twombly, a plaintiff cannot merely allege conduct that is conceivable but must
`instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A
`claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
`the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
`556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not
`akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
`has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
`Where, as here, a plaintiff asserts a claim sounding in fraud, the plaintiff must “state with
`particularity the circumstances regarding fraud or mistake.” Fed. R. Civ. P. 9(b). A claim sounds
`in fraud if the plaintiff alleges “a unified course of fraudulent conduct and rel[ies] entirely on that
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`Unless otherwise noted, all further citations to a “Rule” are to the Federal Rules of Civil
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`Procedure.
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`course of conduct as the basis of a claim.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103
`(9th Cir. 2003). The particularity requirement of Rule 9(b) is satisfied if the complaint “identifies
`the circumstances constituting fraud so that a defendant can prepare an adequate answer from the
`allegations.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989); see
`also Vess, 317 F.3d at 1106. Accordingly, “[a]verments of fraud must be accompanied by ‘the
`who, what, when, where, and how’ of the misconduct charged.” Vess, 317 F.3d at 1106
`(quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).
`If the allegations are insufficient to state a claim, a court should grant leave to amend
`unless amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th
`Cir. 1990); Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv. Inc., 911 F.2d 242, 246-
`47 (9th Cir. 1990). If a plaintiff has previously amended a complaint, a court has “broad”
`discretion to deny leave to amend. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
`1990) (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).
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`B.
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`Standing.
`1.
`Plaintiff’s allegations are not sufficient to establish standing to seek equitable
`restitution.
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`Defendant moves to dismiss Plaintiff’s claim for equitable restitution on the basis that she
`does not allege she lacks an adequate remedy at law. It is well-established that claims for relief
`under the FAL and the UCL are limited to restitution and injunctive relief. See, e.g., Korea Supply
`Co. v. Lockheed Martin Corp, 29 Cal. 4th 1134, 1146-49 (2003). In contrast, the CLRA provides
`for equitable relief and for damages. In Sonner v. Premier Nutrition Corporation, the Ninth
`Circuit held “that the traditional principles governing equitable remedies in federal courts,
`including the requisite inadequacy of legal remedies, apply when a party requests restitution under
`the UCL and CLRA in a diversity action.” 971 F.3d 834, 843-44 (9th Cir. 2020).
`Here, Plaintiff fails to allege that she lacks an adequate remedy at law for her restitution
`claim. Plaintiff alleges that she “may lack an adequate remedy at law, if for instance, damages
`resulting from her purchase of the Product is determined to be in an amount less than the premium
`price of the Product.” (FAC ¶¶ 103, 112, 122, 153.) However, Plaintiff’s allegations do not show
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`how restitution would go beyond the damages available to her. Plaintiff fails to allege any specific
`facts showing that damages are “inadequate or incomplete.” Sonner, 971 F.3d at 844; see also
`Nacarino v. Chobani, LLC, No. 20-cv-07437-EMC, 2021 WL 3487117, at *12 (N.D. Cal. Aug. 9,
`2021). Further, Plaintiff’s allegations are conditional because Plaintiff claims she “may” lack an
`adequate remedy at law “if” damages are less than restitution. See, e.g., Johnson v. Trumpet
`Behavioral Health, LLC, No. 3:21-cv-03221-WHO, 2022 WL 74163, at *3 (N.D. Cal. Jan. 7,
`2022) (concluding conditional allegations insufficient to plead that plaintiffs actually lacked an
`adequate remedy of law). Plaintiff’s allegations are not enough to meet Sonner’s rule because
`Plaintiff does not allege she lacks adequate legal remedies. Instead, as in Johnson, Plaintiff
`alleges she “seek[s] equitable relief to the extent legal remedies are inadequate or if legal remedies
`are inadequate.” Id. (emphasis in original).
`Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for
`equitable restitution.3 Because it is possible that Plaintiff could plead that she lacks an adequate
`remedy at law, the Court GRANTS Plaintiff leave to amend.
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`2.
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`Plaintiff’s allegations are sufficient to establish standing to seek injunctive
`relief.
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`In addition to seeking restitution, Plaintiff seeks prospective injunctive relief. In Zeiger v.
`WellPet LLC, the court reasoned that damages for past harm were not an adequate remedy for
`prospective harm caused by alleged false advertising because damages “would [not] ensure that
`[the plaintiff] (and other consumers) can rely on WellPet’s representations in the future.” 526 F.
`Supp. 3d 652, 687 (N.D. Cal. 2021); see also Adams v. Cole Haan, LLC, No. 8:20-CV-00913-
`JWH-DFMx, 2021 WL 4907248, at *4 (C.D. Cal. Mar. 1, 2021) (finding monetary damages
`“would not necessarily be sufficient to remedy” harm from alleged false advertising).
`Plaintiff alleges that she lacks an adequate remedy at law because absent an injunction,
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`Plaintiff’s claim for unjust enrichment also seeks equitable restitution. (FAC ¶ 152.) As
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`discussed above, Plaintiff fails to demonstrate that she lacks an adequate remedy at law for her
`restitution claim. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s
`claim for unjust enrichment.
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`Defendant will continue to deceive consumers. Here, monetary damages would not necessarily be
`sufficient to remedy the alleged harm insofar as Plaintiff alleges that she would like to keep
`buying Defendant’s Products but is deterred from doing so because she will be unable to
`determine if the Products’ labeling is truthful. (FAC ¶ 8.) The Court concludes that Plaintiff has
`plausibly alleged that she lacks an adequate remedy at law for injunctive relief. See Moran v.
`Bondi Sands (USA) Inc., No. 21-cv-07961-JSW, 2022 WL 1288984, at *6 (N.D. Cal. Apr. 29,
`2022); see also Brooks v. Thomson Reuters Corp., No. 21-cv-01418-EMC, 2021 WL 3621837, at
`*11 (N.D. Cal. Aug. 16, 2021) (declining to apply Sonner to bar UCL claims for prospective
`injunctive relief because “the prospect of paying damages is sometimes insufficient to deter a
`defendant from engaging in an alleged unlawful, unfair, or fraudulent business practice”).
`Accordingly, the Court DENIES Defendant’s motion to dismiss Plaintiff’s claim for
`injunctive relief.
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`3.
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`Plaintiff sufficiently alleges she has Article III standing to pursue claims for
`products she did not purchase.
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`Plaintiff alleges she purchased one of the Products listed in the FAC, which did not contain
`animal byproducts. Defendant argues that she lacks standing to pursue claims based on Products
`she did not purchase, which would include Products that are derived from animals raised on GMO
`feed. “[T]here is no controlling authority [in the Ninth Circuit] on whether Plaintiffs have
`standing for products they did not purchase.” Miller v. Ghirardelli Chocolate Co., 912 F. Supp.
`2d 861, 868 (N.D. Cal. 2012). Despite the lack of controlling authority, “[t]he majority of the
`courts that have carefully analyzed the question hold that a plaintiff may have standing to assert
`claims for unnamed class members based on products he or she did not purchase so long as the
`products and alleged misrepresentations are substantially similar.” Id. at 869; see also Figy v.
`Frito-Lay N. Am., Inc., 67 F. Supp. 3d 1075, 1082-83 (N.D. Cal. 2014) (“Courts in this district
`have adopted three diverging approaches for analyzing standing to pursue claims for nonpurchased
`products.”). “[C]ourts look to a series of factors including whether the challenged products are of
`the same kind, comprised of largely the same ingredients, and whether each of the challenged
`products bears the same alleged mislabeling” when deciding whether products are substantially
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`similar. Figy, 67 F. Supp. 3d at 1083. Diverse products that bear similar labels have been
`considered “substantially similar.” Maisel v. S.C. Johnson & Son, Inc., No. 21-CV-00413-TSH,
`2021 WL 1788397, at *4 (N.D. Cal. May 5, 2021) (collecting cases). Once a court determines the
`products are sufficiently similar, “any concerns regarding material differences in the products can
`be addressed at the class certification stage.” Anderson v. Jamba Juice Co., 888 F. Supp. 2d 1000,
`1006 (N.D. Cal. 2012).
`Here, Plaintiff alleges that the Products are substantially similar in the following ways: (1)
`all are manufactured at Defendant’s factories in Cincinnati, Ohio; (2) all contain the identical Non
`GMO Claim on the front of the packaging; and (3) the misleading effect of the Non GMO Claim
`is the same across all the Products in terms of what a reasonable consumer would understand
`“non-GMO” to mean. (FAC ¶ 41.) See Maisel, 2021 WL 1788397, at *5 (finding substantial
`similarity among diverse products because all products were manufactured by defendant, all
`products contained the plant-based representations on the front of the packaging, and all products
`had the same misleading effect).
`Based on these allegations, the Court finds Plaintiff has sufficiently alleged that the
`Products she did not purchase are substantially similar to the Product she did purchase. The
`differences between the Products raised by Defendant in the motion may impact class certification
`or summary judgment, but the differences are not enough to defeat substantial similarity for the
`purposes of standing. See Bohac v. Gen. Mills, Inc., No. 12-cv-05280-WHO, 2014 WL 1266848,
`at *12 (N.D. Cal. Mar. 26, 2014) (differences in ingredients and labeling on products did not
`render the products sufficiently dissimilar to defeat standing where the products contained similar
`“natural” representations and the challenged harm was the same).
`Accordingly, the Court DENIES Defendant’s motion on this basis.
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`C.
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`Failure to State a Claim.
`1.
`Plaintiff’s allegations satisfy Rule 9(b)’s heightened pleading standard.
`Defendant argues Plaintiff fails to meet Rule 9(b)’s heightened pleading standard. More
`specifically, Defendant argues that Plaintiff did not sufficiently allege “what” is false and “why” it
`is false. Plaintiff alleges she “reviewed the labeling, packaging, and marketing materials” on the
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`Case 4:21-cv-09940-JSW Document 37 Filed 01/06/23 Page 8 of 17
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`Gerber Good Start Soy 2 Powder Infant & Toddler Formula, and “saw the . . . claims that . . . the
`Products are purportedly ‘Non-GMO’ infant formula” prior to purchasing the Product. (FAC ¶ 7.)
`Plaintiff also alleges the various retail stores from which she purchased the Product. (Id.)
`Plaintiff includes photographs of the Products she challenges, which include the Image and the
`Statement. (Id. ¶¶ 44-75.) The Court concludes Plaintiff’s allegations satisfy Rule 9(b)’s
`heightened pleading standard because she sufficiently “identifies the circumstances constituting
`fraud so that [D]efendant can prepare an adequate answer from the allegations.” Moore, 885 F.2d
`at 540. Plaintiff has alleged the “who, what, when, where, and how” of the challenged
`misconduct. (FAC ¶¶ 78-84.) Further, as discussed below, the facts are sufficient to allege a
`reasonable consumer would be deceived. Therefore, Plaintiff sufficiently alleges why Defendant’s
`Non GMO Claim is false.
`Accordingly, the Court DENIES Defendant’s motion on this basis.
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`2.
`Plaintiff states a claim, in part.
`Plaintiff defines GMOs as organisms that have been altered through genetic modification,
`which she alleges is “an artificial laboratory-based technique that is specifically designed to enable
`the transfer of genes between unrelated or distantly related organisms,” and she sets forth a list of
`ingredients she alleges are GMOs. (Id. ¶¶ 14, 42.)4 Defendant breaks down that list into three
`categories: (1) ingredients allegedly derived from genetically modified crops or food sources; (2)
`ingredients allegedly genetically engineered in a laboratory setting through the use of
`biotechnologies; and (3) ingredients allegedly sourced from animals raised on GMO feed.
`Defendant argues Plaintiff fails to state a claim because she does not plausibly allege that the
`ingredients under Categories 2 and 3 fall within her definition of GMO.5
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`Plaintiff also alleges that many of the ingredients are “identified as” GMOs by the Institute
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`for Responsible Technology. As Defendant notes, the guide Plaintiff references actually states the
`ingredients “may be made from GMOs.” (See id. n.35 (citing
`https://www.pilgrimsmarket.com/pdf/Non-GMO-Shopping-Guide.pdf at 14 (last visited Dec. 14,
`2022).) Therefore, the Court has not accepted as true allegations that these ingredients are, in fact,
`GMOs.
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`Defendant does not argue the ingredients under Category 1 do not plausibly fit Plaintiff’s
`definition of GMO.
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`With respect to ingredients under Category 2, Defendant argues Plaintiff fails to allege
`how the ingredients have been genetically modified from the required process outlined in her
`definition of GMO. Plaintiff describes genetic modification as a “transfer of genes,” but Plaintiff
`does not allege that the ingredients underwent this transfer of genes process. See, e.g., Gallagher
`v. Chipotle Mexican Grill, Inc., No. 15-cv-03952-HSG, 2016 WL 454083, at *4 (N.D. Cal. Feb. 5,
`2016) (granting motion to dismiss and concluding plaintiff’s definition of GMO was “inconsistent
`with her interpretation of defendant’s GMO claims” because she did not allege that the ingredients
`had “been altered using . . . genetic engineering techniques”, as required under her definition of
`GMO). Without these allegations, Plaintiff fails to allege the ingredients that would fall within the
`scope of Category 2 are GMOs.
`In regard to ingredients in Category 3, Defendant argues Plaintiff’s definition of GMO
`would not include Category 3 ingredients, i.e. Plaintiff does not allege that animals which
`produced the byproducts are genetically modified by eating GMO feed nor does she allege how
`the resulting byproducts are genetically modified. In support of its argument, Defendant relies
`upon Gallagher, 2016 WL 454083 and Pappas v. Chipotle Mexican Grill, No. 16-CV-612-MMA
`(JLB), 2016 WL 11703770 (S.D. Cal. Aug. 31, 2016). In Gallagher, the court granted defendant’s
`motion to dismiss because plaintiff did not allege that defendant’s meat and dairy ingredients were
`derived from genetically modified animals despite plaintiff’s argument that a reasonable consumer
`would interpret non-GMO to mean meat and dairy ingredients produced from animals that have
`never consumed any genetically modified substances. 2016 WL 454083, at *4. Similarly, in
`Pappas, the court found plaintiff’s definition of non-GMO to be implausible. There, the plaintiff
`argued a reasonable consumer would believe the term non-GMO would include animals that have
`not consumed feed containing GMOs. Pappas, 2016 WL 11703770, at *7. However, the plaintiff
`did “not allege that by eating feed with genetically modified ingredients, animals themselves
`become genetically modified organisms.” Id.
`The Court finds Gallagher and Pappas distinguishable from the present case. In those
`cases, the plaintiffs failed to explain how, under their definitions of GMO, a reasonable consumer
`would understand “non-GMO” to mean meat and dairy ingredients from animals that did not
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`Case 4:21-cv-09940-JSW Document 37 Filed 01/06/23 Page 10 of 17
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`consume GMO feed. Here, Plaintiff alleges that reasonable consumers would understand the Non
`GMO Claim on the front and rear of the packaging to mean that the Products “(1) [do] not contain
`GMOs and [are] not sourced from, or derived from any GMOs; and (2) [do] not contain animal
`products . . . that have a diet of GMO feed, GMO contaminated feed and/or genetically modified
`or engineered feed.” (FAC ¶ 28.) Plaintiff sufficiently alleges a reasonable consumer would have
`this understanding of the term non-GMO because of the prevalence and recognizability of the
`Non-GMO Project, the efforts of the federal government, and market research into a reasonable
`consumer’s interpretation of the term non-GMO. (Id. ¶¶ 24-27.)6
`Additionally, Plaintiff’s specific theory of a reasonable consumer’s understanding of the
`term is that non-GMO ingredients are not derived from animals fed genetically modified feed.
`Plaintiff’s claims do not rest on a theory that the animals have themselves become genetically
`modified from consuming GMO feed or that the byproducts derived from these animals are
`genetically modified.7 Therefore, Plaintiff’s definition of non-GMO for Category 3 ingredients do
`not require allegations of how animals are genetically modified from consuming GMO feed or
`how the resulting byproducts are also genetically modified.
`Accordingly, the Court GRANTS Defendant’s motion to dismiss claims based on the
`“Category 2” ingredients, but will GRANT Plaintiff leave to amend. The Court DENIES
`Defendant’s motion to dismiss claims based on the “Category 3” ingredients.
`//
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`Further analysis into the reasonable consumer standard is addressed in the following
`6
`section.
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`Defendant also argues that no reasonable consumer would understand Category 3
`ingredients to constitute GMOs because, under federal law, regulations on bioengineered food
`“should exclude a bioengineered food solely because the animal consumed feed produced from,
`containing, or consisting of a bioengineered substance.” 7 U.S.C. § 1639b(2)(A). Plaintiff,
`however, alleges consumers have a broader understanding of the term “non-GMO.” (FAC ¶ 23.)
`The Court concludes this argument is best addressed in the context of a motion for summary
`judgment.
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`3.
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`Plaintiff has alleged that a reasonable consumer could be deceived by
`Defendant’s Non GMO Claim.
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`Defendant also argues that no reasonable consumer could be misled by its Non GMO
`Claim. To state a claim under the FAL, CLRA, and UCL, Plaintiff must allege facts satisfying the
`“reasonable consumer” standard, i.e. that members of the public are likely to be deceived. See
`Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008).
`
`“Likely to deceive” implies more than a mere possibility that the
`advertisement might conceivably be misunderstood by some few
`consumers viewing it in an unreasonable manner. Rather, the phrase
`indicates that the ad is such that it is probable that a significant
`portion of the general consuming public or of targeted consumers,
`acting reasonably in the circumstances, could be misled.
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`Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003).
`Whether a business practice is deceptive is an issue of fact not generally appropriate for
`decision on a motion to dismiss. See, e.g., Williams, 552 F.3d at 938-39 (citing Linear Tech.
`Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115, 134-35 (2007)). However, courts have
`granted motions to dismiss under the UCL and similar statutes on the basis that the alleged
`misrepresentations were not false, misleading, or deceptive as a matter of law. See, e.g., Freeman
`v. Time, Inc., 68 F.3d 285, 290 (9th Cir. 1995) (holding that reading flyer as a whole dispelled
`plaintiff’s allegation that a particular statement was deceptive); see also In re Sony Gaming
`Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 989 (S.D. Cal. 2014).
`Plaintiff alleges that reasonable consumers would understand the Non GMO Claim on the
`front and rear of the packaging to mean that the Products “(1) [do] not contain GMOs and [are] not
`sourced from, or derived from any GMOs; and (2) [do] not contain animal products . . . that have a
`diet of GMO feed, GMO contaminated feed and/or genetically modified or engineered feed.”
`(FAC ¶ 28.) Plaintiff alleges reasonable consumers have this understanding because of
`educational efforts from third party verification agencies, such as the Non-GMO Project, which
`has the same definition of non-GMO used by Plaintiff, and from government authorities. (Id. ¶¶
`24-26.) Plaintiff points to market research that supports this consumer understanding of the claim
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`Case 4:21-cv-09940-JSW Document 37 Filed 01/06/23 Page 12 of 17
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`“non-GMO.” (Id. ¶¶ 27-28.) Plaintiff further alleges that the inclusion of the Statement “not
`made with genetically engineered ingredients” under the words “non-GMO” would not matter to a
`reasonable consumer because consumers use these terms interchangeably and understand them to
`be the same. (Id. ¶ 37.)
`Defendant contends that Plaintiff’s theory of consumer deception fails because a
`reasonable consumer would not interpret Defendant’s Non GMO Claim to be equivalent to the
`Non-GMO Project’s definition of GMO. Defendant also contends no reasonable consumer would
`confuse Defendant’s Image with the Non-GMO Project’s seal. In support of its argument,
`Defendant relies on Gordon v. Target Corp., No. 20-CV-9589 (KMK), 2022 WL 836773
`(S.D.N.Y. Mar. 18, 2022).
`In Gordon, the plaintiff challenged the graphic on the defendant’s product, which was
`labeled “non-GMO” and contained the sub-heading: “ingredients not genetically engineered.” Id.
`at *5. The plaintiff also alleged that the defendant included the graphic to mislead consumers into
`believing the product was verified by the Non-GMO Project. Id. The district court explained that
`the Non-GMO Project’s seal was highly distinctive because it included the organization’s name,
`the word “verified,” the URL for the Non-GMO Project’s website, and a graphic of an orange
`butterfly with a blade of grass. Id. at *12. The court found the product’s labeling was not
`misleading and did not mimic the Non-GMO Project’s seal because the only similarity between
`the Non-GMO Project’s seal and the product’s non-GMO graphic was the use of the term “non-
`GMO.” Id. The court held that it was patently implausible and unrealistic for a reasonable
`consumer to see the product’s non-GMO graphic and believe the product was verified by the Non-
`GMO Project. Id.
`The Court finds Gordon distinguishable on its facts. Unlike in Gordon, where there was
`only one similarity between the Non-GMO Project’s seal and the defendant’s non-GMO graphic,
`Defendant’s Image has more similarities to the Non-GMO Project’s seal. For example,
`Defendant’s Image contains capitalized “NON GMO” text and a V-shaped leaf-like graphic in the
`corner:
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`Case 4:21-cv-09940-JSW Document 37 Filed 01/06/23 Page 13 of 17
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`The Court concludes that Plaintiff sufficiently alleges similarities that could give
`reasonable consumers the impression that Defendants’ products met the Non-GMO Projects’
`standards. (See FAC ¶ 37.) Cf. Rankin v. Arca Cont’l S.A.B. de C.V., No. 20-CV-1756 (ENV)
`(TAM), 2022 U.S. Dist. LEXIS 103573, at *15 (E.D.N.Y. June 9, 2022) (finding a reasonable
`consumer could be misled with defendant’s green, V-shaped graphic atop the capitalized sans serif
`“NON GMO” text). Further, Plaintiff cites to various sources to illustrate the prevalence of the
`Non-GMO Project. For example, Plaintiff alleges that the work of the Non-GMO Project is well
`known because the seal is found on over 50,000 food products and the Non-GMO Project website
`has over 200 million visits a year. (FAC ¶ 24.) A fact finder could conclude that the
`recognizability of the Non-GMO Project’s seal “could actually be a source of . . . confusion”
`between Defendant’s Image and the Non-GMO Project’s seal. Rankin, 2022 U.S. Dist. LEXIS
`103573, at *16.
`Plaintiff also cites to the efforts by the federal government to adopt standards for non-
`GMO labeling and to market research into a reasonable consumer’s interpretation of non-GMO.
`(FAC ¶¶ 26-27.) Other courts have found that these additional sources are enough to support an
`allegation that a reasonable consumer would be deceived. See Schneider v. Chipotle Mexican
`Grill, Inc., No. 16-cv-02200-HSG, 2016 WL 6563348, at *2 (N.D. Cal. Nov. 4, 2016) (finding
`that plaintiff sufficiently alleged that a reasonable consumer would be deceived based on
`allegations of definitions used by the Non-GMO Project and the federal government, as well as
`market research and surveys in consumers’ reasonable interpretations of the phrase).
`Defendant also argues a reasonable consumer could review the Products’ ingredient lists to
`det