Eleventh Circuit Has No Appetite for Non-GMO Claims

Advertising Law

The U.S. Court of Appeals for the Eleventh Circuit affirmed summary judgment in favor of Chipotle Mexican Grill in a false advertising action, holding that the plaintiff failed to demonstrate an actual injury based on the national chain’s claim that “all of our food is non-GMO.”

In 2015, Chipotle announced that it moved to the use of ingredients with only non-genetically modified organisms (GMOs). Menu panels and window clings proclaimed “Farewell to GMOs” and “All of our food is non-GMO.” Leslie Reilly—who began eating at the national fast food chain in 2010—noticed the signs and was “pleasantly surprised.”

But she also believed that animals that eat feed from GMOs cannot produce non-GMO meat or products, and that Chipotle engaged in false advertising because the sour cream, cheese and meat used by the company are sourced from farms where the animals eat GMO feed. Her putative class action alleged violations of the Florida Deceptive Practices Act.

A Florida federal court denied the defendant’s motion to dismiss. Chipotle then moved for summary judgment, arguing that Reilly could not meet her burden under the state statute because she had not proven actual damages.

The district court granted the motion, and the federal appellate panel affirmed. “Reilly suffered no actual loss,” the court wrote. “Her bank records and testimony established that she paid the identical amount for her burrito before and after Chipotle began its advertising and that she paid ‘about the same [price] … or maybe $1.00 more’ for a comparable meal at another Mexican grill.”

Declining to consider whether Reilly was deceived by the defendant’s advertising, the panel held that because proof of actual damages was necessary to sustain her claim and she could not establish she had been damaged by the advertising, Chipotle was entitled to summary judgment.

To read the memorandum in Reilly v. Chipotle Mexican Grill, Inc., click here.

Why it matters: The Eleventh Circuit refused to even consider whether Reilly was deceived by Chipotle’s “non-GMO” claims because she could not satisfy one of the elements of her state law claim. The fact that she paid the same amount for the defendant’s products before and after the advertising campaign left her unable to establish actual damages, the court said.



pursuant to New York DR 2-101(f)

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