Massachusetts consumer-protection law could prove a slippery slope for maker of Wesson Vegetable Oil in an ingredient lawsuit

A federal appeals court today reinstated a lawsuit by a Brookline woman who sued because she was very put out upon finding that "100% natural" Wesson Oil may be derived from genetically-modified plants, which she claims makes it anything but natural.

The ruling by the US Court of Appeals for the First Circuit in Boston overturned an order by a federal judge - issued in 2017 - dismissing the suit because he agreed with Conagra Brands that the labeling is fine with the FDA and that federal food regulations trump anything in state law.

But in reinstating Margaret Lee's suit - in which she is pressing to become the lead plaintiff in a class-action case that could mean more than $5 million in damages - the appeals court ruled that the real issue is not what sort of ingredients are in a product, but whether an informed consumer could feel deceived by labeling. And that, the court said, is something that is definitely covered by the Massachusetts consumer-protection law. It cited a similar ruling it issued last year reinstating a lawsuit by a woman who felt horribly led astray upon learning that one coffee company's "hazelnut creme" coffee contained no hazelnuts.

Lee sued Conagra - and Stop & Shop and Roche Bros. - in 2017 after, she says, years of happily, blithely buying Wesson Vegetable Oil because she thought "100% natural" meant, among other things, no genetically-modified ingredients. She says she was shocked when she learned otherwise, switched to another brand of vegetable oil and, as one does, contacted an attorney, one who fortuitously specializes in class-action lawsuits.

According to the court's summary of the case:

She submits that Conagra indicated that Wesson Oil was "100% Natural" on its label even though it contained GMOs, that Lee herself understood "100% Natural" to mean that Wesson Oil was GMO-free, that she purchased it from specific grocery stores in Massachusetts "five or six times per year" for years, and that she bought a different product after she learned that Wesson Oil contained GMOs. The complaint thus plausibly alleges that Wesson Oil's label could have deceived a reasonable consumer.

In addition to ruling that Lee has a case to make to a jury under state law, the court dismissed Conagra's argument that the FDA has determined that GMO products are, too, natural. In fact, the court said, the FDA has not actually taken a stand on whether GMO-based products can be labeled as "natural," that, in fact, the agency is still, ploddingly, trying to decide whether products with a GMO provenance can be labeled as "natural." The court said the agency took a stab at the question in the 1990s, then sought comments in 2015 on the question and has yet to issue any binding regulations on the issue:

Critically, the FDA's far more recent request for comment as to whether GMOs are natural [issued in 2015] implicitly acknowledges that the agency has not yet ruled that they are.

The court added:

We decline to wade into the debate over the best definition of "natural." At this stage, we need only decide whether Lee has plausibly alleged that a reasonable consumer might think that "100% Natural" means that a product contains no GMOs, and then base her purchasing decision on that belief. See Dumont, 934 F.3d at 40 [the hazelnut-creme coffee case]. Lee has met that low threshold, so her claim may proceed.

The court continued:

It is true that Lee points to no FDA regulation or guidance stating that a manufacturer may not describe as "100% Natural" a product that contains GMOs. But if "100% Natural" is reasonably read in light of the FDA's existing pronouncements to mean, among other things, "no GMOs," then the absence of an FDA pronouncement following Conagra's use of the term "100% Natural" should cut against Conagra, not immunize it. To conclude otherwise would be to say that food manufacturers can lie with impunity as long as the FDA has yet to bar the particular lie they wish to tell. The FDA likely does not have, for example, a rule specifically prohibiting labeling frog eggs "caviar."

Ed. note: The FDA has a Caviar compliance policy guide, which states that "The term 'caviar' unqualified should be applied only to the article prepared by the special method (salting) of sturgeon roe," although it goes on to state that because the FDA has yet to determine a final rule on the issue, even though it has been considering it since 1914, yes, 1914, that eggs of another species could be called another-species caviar, just not plain old "caviar."