• On September 11, 2020, Defendant Conagra Brands, Inc. filed a motion for summary judgment in which it argued that Plaintiff’s claim – that Conagra had misled consumers by marketing Wesson brand cooking oils containing GMO ingredients as “100% natural” – should be dismissed because Plaintiff had failed to specify the injury that she had suffered in a presuit demand letter as required by Massachusetts law.
  • By way of background, the First Circuit Court of Appeals had previously reversed a district court’s dismissal of the complaint, holding that Conagra could not demonstrate that its labeling conformed with the FDA labeling policy and that Conagra had “confused the FDA’s informal policy not to restrict the use of the term natural with a rule defining it.” In other words, because the FDA had not affirmatively approved the labeling of GMO products as “100% natural,” dismissal was not warranted.
  • In its motion for summary judgment, Conagra alleged that the demand letter amounted to a bald assertion that Conagra’s labeling practices violated the law and did not allow Conagra to assess the injury that the Plaintiff had allegedly suffered. In particular, Plaintiff did not provide any details regarding her purchase or the value of the product as purchased and “as promised” and, even when prompted to correct the deficiencies in the letter, merely asserted that that the injury was “apparent.” Conagra’s Motion also rebutted Plaintiff’s assertions and argued that (1) it had not waived the presuit demand deficiency argument by failing to include it in its motion to dismiss (because a waiver of an affirmative defense can only be made in a pleading) and (2) a lawsuit in another jurisdiction did not give Conagra notice or in any way modify Plaintiff’s legal obligation to write a legally sufficient demand letter prior to litigation.
  • Keller and Heckman will continue to monitor and provides updates on lawsuits that target natural claims.