Daily Business Review: Chipotle GMO Class Action, in Miami Court, Survives Dismissal Motion 

By Celia Ampel
April 22, 2016 

A class action lawsuit against Chipotle Mexican Grill over genetically modified ingredients survived a motion to dismiss in Miami federal court.

U.S. District Judge Marcia Cooke on Wednesday allowed two of three claims to go forward. The case is the most advanced of similar lawsuits against Chipotle, according to plaintiffs lawyer Lance Harke of Harke Clasby & Bushman in Miami Shores.

The litigation addresses a question not yet settled by legislators or the courts: Can meat or dairy products be labeled as “non-GMO” if the animals they came from were raised on genetically modified feed?

Plaintiff Leslie Reilly alleges she paid a premium for Chipotle fare because she believed the food was “non-GMO” through and through, based on the Denver-based fast-casual restaurant chain’s marketing.

Chipotle does not deny selling meat and dairy products that came from animals that consumed genetically modified feed. But it does not believe a reasonable consumer would take that fact to mean Chipotle serves GMO ingredients.

“We do not believe there is merit to this suit, and we will contest it,” Chipotle spokesman Chris Arnold said in an email.

Cooke dismissed without prejudice a claim for injunctive relief, finding the plaintiff did not have standing to claim future harm from eating at Chipotle.

But the judge ruled it was too early to decide whether Reilly’s interpretation of “non-GMO” was plausible. She also allowed an unjust enrichment claim to go forward.

Cooke’s decision differed from that of a Northern District of California judge who dismissed a similar case against Chipotle. Another Southern District of Florida case with similar allegations is awaiting a motion to dismiss hearing.

Harke said Reilly’s case is now on an accelerated schedule with a November trial date set.

He said people have differed on whether animals on “a diet of extremely cheap, genetically modified Franken-wheat” can be reasonably represented to consumers as non-GMO.

State legislatures have taken different stances on the issue, and both parties cited several draft laws, said Harke’s colleague, Sarah Clasby Engel, who is also on the case.

If it progresses further, the litigation is a chance for Chipotle to be more upfront with health-conscious consumers, Engel said.

“We really hope that they’ll be more transparent with their customers as to what exactly the consumers are paying a premium price for,” she said.

The attorneys expect a potential Florida class would include “thousands and thousands” of consumers since Chipotle has 119 locations in the state.

Harke and Engel are joined on the case by Howard Bushman of their firm.

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