"GMO-free" avocado oil isn't deceptive even if all avocado oil is GMO-free

Whiteside v. Chosen Foods, LLC, --- F.Supp.3d ----, 2025 WL2460192, No. 3:25-cv-00481-CAB-DDL (S.D. Cal. Aug. 26, 2025)

Plaintiff alleged that defendants misleadingly advertisedtheir avocado oil by using a non-GMO label, because all avocado products arefree from GMOs. The court found that reasonable consumers would not receive themessage that other avocado oils had GMO ingredients from the label claims“non-GMO” and/or “non-GMO Project Verified.” The latter was literally true. “Asa matter of law, the reasonable consumer and purchaser of the Products wouldunderstand that the Non-GMO Project Verified label means that the Products arecertified by the Non-GMO Project,” and nothing more. The court agreed withdefendants “that a reasonable consumer who cares about the GMO status ofingredients knows that there are no commercially available geneticallyengineered avocados, and if consumers had any questions about the Non-GMOProject’s certification standards, they would review those standards.”

Given that reasonable consumers are expected to know a fairamount about the world, “as a matter of law, the reasonable consumer of theProducts would understand that only certain foods are available in both non-GMOand GMO forms, that certain ingredients—including avocado oil—are onlyavailable in a non-GMO form, and that avocado oil is a non-GMO alternative tocanola or vegetable oils.” I think this is a lot to expect of reasonableconsumers—a far better justification would be that reasonable consumers don’tthink through the implications of a claim for other products unless they’regiven more reason to do so than this. “Given this context, a reasonableconsumer would not interpret the Products’ label to represent anything aboutwhether other avocado oil products contain GMOs or the GMO-free status ofcommercially available avocados.”