All baking soda is non-GMO; suit says Whole Foods labels misled

A lawsuit accuses Whole Foods of misleading consumers by marketing its baking soda as "non-GMO"--a claim the plaintiff argues is inherently deceptive since baking soda, a mineral compound, is not derived from any organism and cannot be genetically modified.

The proposed class action alleges the labeling is a "greenwashing" tactic designed to justify higher prices and gain an unfair advantage over competitors.

A representative from Whole Foods could not be reached immediately for comment.

The complaint filed in San Francisco Superior Court on Monday said the 365 Whole Foods Market branded baking soda prominently displays on the front and side label that it is "non-GMO" or "non-GMO Project Verified". Deborah Bautista v. Whole Foods Market, Inc., CGC-25-623364 9S.F. Super. Ct. filed Mar. 17, 2025).

The complaint, filed by Craig W. Straub of Crosner Legal PC in Beverly Hills, alleges that by prominently featuring the non-GMO claims on its products, Whole Foods is intending to induce consumers to pay more for it than for other comparable products that are not labeled with non-GMO claims.

The labels are misleading, the complaint says, because "all baking soda for sale in the United States, and indeed the entire world, is non-GMO."

The California Supreme Court has previously recognized that this type of literally true but misleading advertising is unlawful, the complaint said.

Straub declined to comment on the case when contacted by phone Tuesday.

But August Horvath, partner and co-chair of the advertising and marketing practice at New York-based Foley Hoag LLP, who is not connected to the case, said the plaintiff may have a difficult time proving the legal theory.

"Because it's a rather difficult thing to prove in an unbiased survey without leading the respondents one way or the other in terms of whether they have this background belief or what their understanding is," Hovarth said.

"The other thing is you're posing the existence of a consumer who knows enough about GMOs to care whether they're in their food or not but doesn't know enough about GMOs to know which products potentially contain GMOs and which ones don't.

"There's only about 10 crops that are grown in the United States that are GMO that are ever consumed by people. So that's a kind of implausibly uneven type of knowledge," he said.

The complaint states, "Defendant's advertising scheme is intended to give consumers the impression that they are buying a premium product that is non-GMO. Defendant does this because consumers perceive non-GMO foods as better for them and healthier."

Hovarth said that if he were representing Whole Foods, he would argue that there is value in the non-GMO claim as baking sodas to some extent compete with baking powder, and baking powder can be GMO because it is baking soda that is sometimes combined with cornstarch that is sold in the U.S as genetically modified.

"The two products are not perfectly substitutable," said Hovarth. "But, as a general rule, you can substitute baking soda [with baking powder]. And it might reassure you to know that baking soda has no GMO. It's not as easy a case in the consumer's mind as the plaintiff's firm is laying it out to be."

The plaintiff seeks a jury trial claiming the putative class members suffered economic injury and demands restitution and disgorgement of all profits, as well as injunctive relief.