Natural Products Insider

NOV-DEC 2018

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6 INSIDER November/December 2018 In the News Nestlé USA described as "baseless" a lawsuit in California that accuses the Swiss food giant of misleading consumers regarding product packaging that displays a "No GMO Ingredients TM " certifi cate of approval. According to the proposed class-action suit fi led this summer, neither a "nonprofi t group" nor a "neutral third party" bequeathed the above certifi cate of approval, but rather it was Nestlé itself. What's more, the suit alleged, Nestlé USA "intentionally mimicked the appearance of 'independent verifi ers' seals such as the Non-GMO Project," and many ingredients in its products come from genetically modifi ed organisms (GMOs). The suit quoted FTC guidelines that state, "It is deceptive to misrepresent, directly or by implication, that a product, package, or service has been endorsed or certifi ed by an independent third party." The named plaintiff, Jennifer Latiff, is a resident of Oxnard, California, who is said to have purchased certain Nestlé products bearing the "No GMO Ingredients" seal, including Lean Cuisine Marketplace frozen dinners and Coffee-Mate Natural Bliss creamer. Latiff fi led her lawsuit July 27 in the U.S. District Court for the Central District of California, Western Division. Third-Party Certifi er: SGS Responding to the allegations, Nestlé reported that a third party—SGS, a Geneva-based provider of inspection, verifi cation, testing and certifi cation services—verifi ed its process for manufacturing its products that claim an absence of GMOs. "Our product labels that declare the absence of GMO ingredients are accurate, comply with FDA and USDA regulations, and provide consumers with information to help them make informed purchasing decisions," the company asserted in an emailed statement. William Acevedo, a food and beverage attorney and partner in California with Wendel Rosen Black & Dean LLP, reviewed the complaint but isn't involved in the case. In a telephone interview, he highlighted several perceived weaknesses in the proposed class-action suit. The lawyer found it peculiar that the complaint would reference FTC guidelines, since he said Nestlé discloses on its packaging that it works with a third party: namely SGS. "Nestlé has expressly indicated SGS was involved," Acevedo stated. Nestlé USA also has a webpage devoted to GMOs, on which it discloses the relationship with SGS "to ensure [its] supply chain and manufacturing processes are consistent with the 'No GMO ingredients' claim." Fulvio Martinez, a U.S.-based spokesman for SGS, declined to comment for this article in response to questions about SGS' relationship with Nestlé. Daniel Warshaw and Michael Reese, two attorneys who fi led the suit, did not respond to a request for comment on Nestlé's statement. Products f rom Animals Fed GMOs In support of its allegations that Nestlé's 'No GMO Ingredients' certifi cate of approval is misleading, the lawsuit stated Nestlé's products "that contain dairy come from cows fed GMO grains." "This violates the Non-GMO Project standard, which does not allow for its seal of approval to be placed on dairy-based products that could be from animals fed GMO feed," the complaint asserted. "Defendant avoids the Non-GMO Project's feed standard by using its own, self-created 'No GMO Ingredients' seal, thereby creating confusion and deceiving consumers." Describing Nestlé's label as "deceptive," the suit alleged that "consumers paid a signifi cant premium to purchase a non-GMO product to avoid the well-known health and environmental risks associated with GMO products." Acevedo found the plaintiff's argument unpersuasive for a number of reasons. He referenced a law directing the secretary of USDA to establish a national bioengineered food disclosure standard. Under Senate Bill 764, which was signed into law in 2016, the regulation adopted by the secretary "shall prohibit a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance." Though USDA hasn't fi nalized a rule to develop a national standard, its proposed rule published in the Federal Register incorporates the policy adopted by Congress in the law. Acevedo acknowledged that the Non-GMO Project has developed a more stringent defi nition of GMOs, but he said Nestlé isn't bound by that voluntary standard; and based on the federal standard, the company is free to obtain ingredients derived from animals fed genetically modifi ed feed. "I really think this [lawsuit] is an uphill slog for the plaintiff," Acevedo concluded, "and I would be surprised if it gets very far." He noted Nestlé's webpage describes its position that ingredients derived from animals eating GMO feed aren't GMOs in and of themselves. The court, Acevedo said, will have to decide whether "Nestlé was transparent with [its] labeling, which I believe [it has] been." Non-GMO Project Also at issue in the lawsuit against Nestlé: allegations that it "created a deceptive 'No GMO Ingredients' seal of approval label that mimics the Non-GMO Project seal." Acevedo said the plaintiff would need to produce consumer surveys to back up its claim, and he personally doesn't view the seals as "being so similar that a consumer would be confused." What's more, he opined the plaintiff wouldn't prevail on that theory alone. "If it was just an issue of trademark confusion there, they don't have standing to bring that anyway," the lawyer said. "That would have to be the Non-GMO Project that's saying, 'Hey, you've designed a logo very very similar to ours. Stop it.'" The Non-GMO Project provided a statement, but it did not address the lawsuit's merits. Nestlé USA Denies It Misled Consumers Over 'No GMO' Seal by Josh Long

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