General Mills’ announcement that it will be introducing Cheerios with nonGMO ingredients has created quite the media splash, even putting a dent in coverage of the polar vortex.  As some media reports have noted, however, a GMO-free Cheerios is not that big a stretch as there is very little in Cheerios that has a GMO equivalent (Oats, the primary ingredient, are not a genetically modified food.)

Genetically modifying our food supply has its share of supporters (making foods more healthy and disease and pest resistant) and detractors (unwittingly creating some sort of “frankenfood”) and we know better than to wade into that debate.  However, the introduction of a nonGMO ingredient version of such an iconic brand raises a number of interesting legal questions and many other brands are likely to watch closely to see how this introduction goes from both a marketing and legal perspective.

First, is this an implied claim that a non-GMO product is better for you than products with genetically modified ingredients?  Such labeling claims by themselves have typically not been flagged as implied superiority claims.  However, when dairy products containing milk from cows that had not been given artificial growth hormones were labeled as such a series of lawsuits followed and ultimately most such products now bear a disclaimer stating that FDA has found no such significant difference in the two types of milk and recommends but does not require this label.  Similarly, when RJ Reynolds began marketing a cigarette as “additive free” the FTC sued claiming this was an implied claim that such cigarettes were “safer.” Ultimately a disclaimer was also required to remedy the allegedly misleading claim.

Second, manufacturers are likely to use a variation of the disclosure familiar to all of us when it comes to peanuts and other allergens, that the product may contain “trace” amounts of genetically modified material.  Both FDA and FTC permit “free of” claims when a product is not literally 100% free of an ingredient or substance under certain circumstances. FDA has set tolerances for certain ingredients or substances (e.g. gluten free) and the FTC has issued guidance more generally on “free of” claims.  According to the FTC, a product can be advertised as “free of” a substance as long as the amount present is just a trace, it was not intentionally added and the amount of the ingredient present is below the level typically considered harmful by consumers.  The new Cheerios product likely meets at least the first two criteria.  However, given the controversy over whether GMO products are harmful and, if so, at what level, it is likely difficult to determine whether consumers even have a threshold level at which they consider GMOs harmful or whether they consider the presence of any GMO in their food to be problematic.  Note that even though FDA considers bioengineered foods to be generally safe, the FTC guidance focuses on consumers’ belief as to what levels of a substance may be harmful and not on whether the substance is actually harmful at that or any other level.

One area that may be of less concern is FDA.  In 2001, FDA published Draft Guidance for Industry:  Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering.  Despite its age, the Draft Guidance has yet to be finalized.  The Draft Guidance explained that claims such as “GMO free” are likely false or misleading.  First, genetic modification is a broader term than bioengineering, in that FDA views older plant breeding techniques as types of genetic modification and stated that “[m]ost, if not all cultivated crops have been genetically modified.”  Thus, the claim is likely to be considered by FDA as false if it pertains to food derived from cultivated crops of any kind unless it is “clearly in a context that refers to bioengineering technology.”  Second, FDA stated that it would be misleading to claim that a food which does not consist of any type of intact organisms, e.g. yogurt cultures or seeds, is free of genetically modified organisms.  FDA cites as an acceptable claim, “This oil is made from soybeans that were not genetically engineered.”  General Mills’ claim as reported in the media appears to have been crafted at least in part with the FDA’s guidance in mind.

Finally, what will happen with the class action bar?  In the past they have not been shy about attacking food labeling claims such as “natural,” “transfat free” and “no sugar” added or that foods are natural even though they contain genetically modified ingredients.