SAN FRANCISCO (Legal Newsline) – A federal judge will consider a motion to dismiss a class action lawsuit against Abbott Laboratories on Aug. 24 in San Francisco.

Two consumers claim in their suit that Abbott made false claims regarding the contents of its Similac Advance Non-GMO infant formula.

In their suit, Crystal Kao of San Francisco and Nina Barwick of Nashville, Tennessee, accused Abbott of breach of implied warranty, breach of warranty, fraud, negligence and negligent misrepresentation.

Kao and Barwick alleged in their complaint that Similac contained genetically modified organisms and the plaintiffs also allege that Abbott failed to disclose to consumers that its product contains GMOs.

The defendant’s attorney, Elizabeth Deeley of Kirkland & Ellis in San Francisco, wrote in the dismissal motion, "their state law claims are expressly preempted by the National Bioengineered Food Disclosure Standard and their Magnuson-Moss Warranty claim fails as a matter of law because it is well settled that a product description is not a warranty under the MMWA."

Deeley wrote that if the court does not totally dismiss the defendants’ claims, it should stay these proceedings and defer to the U.S. Department of Agriculture’s congressional mandate.

Abbott Laboratories claims it worked with its suppliers to obtain ingredients that were free of GMOs and required those suppliers to commit to deliver non-genetically engineered ingredients.

The foundation of the suit began on April 3 when attorneys for Kao and Barwick wrote a letter to Abbott, challenging the label of its baby formula product and accusing the company of misrepresenting the nature of its Non-GMO formula.

Abbott responded May 1, disputing that its non-GMO Similac product contained any GMOs, and requesting that plaintiffs’ counsel identify any specific lot information and test results that supported their allegations.

Deeley wrote in the motion to dismiss that the "plaintiffs’ state law claims are preempted—they cannot regulate Abbott’s non-GMO labeling with state consumer protection laws and their state law claims must therefore be dismissed."

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