Lacking FDA Guidance Re “Natural” Labeling, First Circuit Holds Use of GMOs May Be Deceptive

But in rejecting Conagra’s position, the First Circuit found that Conagra “mischaracterizes Lee's complaint and the FDA’s views.”  In reality, the court observed, Lee was not requesting “a specific, court-ordered label” disclosing that Wesson Oil contained GMOs. Rather, Lee was making a different request: that because Wesson Oil contained GMOs, it was a deceptive practice to label the product as “100% Natural,” so in addition to damages, she should be granted an injunction “that would bar Wesson Oil's allegedly ‘false and deceptive marketing, branding, and labeling.’” And complying with that injunction would, the court reasoned, require only that Conagra stop describing Wesson Oil as “100% Natural,” not that the label disclose that the oil contains GMOs.

Moreover, the court noted that, “granting Lee's requested relief would not contradict the FDA's guidance.” Contrary to Conagra’s assertion, the court found, the FDA has not said that GMOs are “natural” and may be advertised that way.  In fact, the court held that the FDA has never issued a rule defining “natural,” and Conagra had confused FDA’s “informal policy,” which was not to restrict the use of “natural,” “with a rule defining it.“ As a result, the court concluded, “Where, as here, there is no binding rule defining a term, the agency's pronouncements do not dictate whether a representation has the capacity to deceive a reasonable shopper under Chapter 93A.” 

The First Circuit thus held that Lee had alleged a plausible claim for relief, and the court reversed the district court’s dismissal of the complaint and remanded the case for further proceedings.

The case is Lee v. Conagra Brands, Inc., No. 17-2131 (1st Cir. May 7, 2020).