Whether to require labeling of geneti- cally modified organisms (GMOs) is a hot issue in the ongoing debate about the risks and benefits of food crops produced using biotechnology. For more than a decade, almost all processed foods in the United States have contained ingredients from plants whose DNA was manipulated in a materially differ- ent from conven- tional foods and the impor tant role GMOs are expected to play in alleviating famine in developing countries.
Requiring GMO labeling will leadto decreased product offerings as some manufacturers elect to discontinue certain products rather than deal with increased costs and regulation as well as anticipated consumer backlash. In 1997, the European Union began to require GMO labeling. By 1999, most major European manufacturers had removed GMOs from their products. Today there are almost no GMOs in Euro-
laboratory. Scientists have inserted a gene here or tweaked a gene there to help crops tolerate drought and resist herbicides bet- ter. The most common GMO crops in the United States are soybean, corn, cotton and canola. Because so many processed food products contain soybean or corn ingredi- ents (e.g., high fructose corn syrup or soy protein), it’s estimated that 60 to 70 percent of processed foods in grocery stores con- tain GMOs.
Regulators and many scientists say GMO foods pose no danger to consumers. The American public isn’t so sure. Propo- nents of mandatory labeling frame the issue as one of consumer choice – consumers have a right to know what’s in their food and what they are feeding their families. The anti-labeling faction points to the lack
I. Current Labeling Policy
FDA requires labeling of GMO foods if:
the food contains a significantly differ- ent nutritional property; (2) it contains an allergen that consumers would not expect to be present or (3) it contains a toxicant beyond acceptable limits. In 2001, the FDA proposed voluntary guidelines for labeling of GMO foods.1
II. Arguments For And Against Mandatory Labeling Of
There are a multitude of arguments both in favor of, and against, mandatory labeling of GMO foods. A summary of those argu- ments follows:
Arguments against Mandatory Labeling
Mandatory GMO labeling will only further the misconception that GMO foods
There is no need for mandatory labeling of GMO products because con- sumers who want to avoid GMO foods can purchase certified organic foods, which by definition cannot be produced with GMO ingredients.
Arguments in Favor of Labeling GMO Products
There are no long-term studies dem- onstrating that GMO foods are safe for humans. Unlike almost all other developed countries, the FDA does not require safety testing for GMO foods. There are concerns about the envi- ronmental impact of GMOs. Consumers have a right to know whether the products they are purchasing and feeding to their families contain GMO are dangerous. There is no science that indicates or suggests that GMO foods are ingredients.
Surveys indicate that a majority of
Theodora McCormick is a Member of the
Sills Cummis & Gross Litigation Practice Group and is Co-Chair of the firm’s Women’s Group. She focuses her practice on rep- resenting health care institutions, dietary supplement companies and pharmaceutical corporations in a variety of matters, includ- ing breach of contract, licensing disputes, class action defense, consumer fraud, unfair competition and false advertising under the Lanham Act. The views and opinions expressed in this article are those of the author and do not necessarily reflect those of Sills Cummis & Gross P.C.
harmful to humans or animals. The Ameri- can Association for the Advancement of Science, the World Health Organization and the European Union have all gone on record as saying that GMO foods are as safe as conventional foods.
Labeling GMO products to satisfy the vocal pro-labeling movement will result in cost increases for all consumers. Studies done by companies opposing a bal- lot initiative in California that would have required labeling of GMO foods found that if the measure passed, the yearly food bill
consumers support labeling GMO foods.
Almost all developed countries and the European Union have established some form of mandatory labeling.
III. Current Legal And Regulatory Landscape
In November 2012, California voters rejected, by a narrow majority, Proposi- tion 37, a ballot initiative that would have required mandatory labeling. About a year later, in November 2013, Washington State voters rejected a similar measure, Initia- tive 522. Food producers spent somewhere
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February 2014 The Metropolitan Corporate Counsel Volume 22 No. 2
in excess of $30 million opposing both measures.
Despite these setbacks, opponents of biotech foods in the United States have scored some recent victories. Maine just became the second state to require labels on food that contains genetically modified ingredients under new legislation recently signed into law, but only after other states follow suit. Consumers in Maine won’t see GMO labels right away; instead, the legislation doesn’t go into effect until five nearby states, including New Hampshire, pass similar measures. New Hampshire’s legislature will take up a similar law during its 2014 legislative session. That provision was necessary, the bill’s backers say, to build wide public support and is similar to a provision in a GMO labeling bill passed by Connecticut’s legislature at the end of 2013 that won’t take effect until a combina- tion of northeastern states that add up to 20 million residents pass similar legislation.
Industry groups and corporations such as Monsanto and General Mills will likely challenge the new law in court. Monsanto has threatened to sue other states over labeling legislation, and in 2012, the threat of legal action halted a labeling bill that had been advancing through the Vermont legislature.
At the federal level, in April 2013, Sen. Barbara Boxer (D-CA) and Rep. Peter DeFazio (D-OR) introduced the Geneti- cally Engineered Food Right-To-Know Act, which would require that any food that is genetically engineered or contains ingredients that were genetically engi- neered be labeled.2 The initial draft of the right-to-know bill is similar to exist- ing regulations in several other countries, including China, Russia, Saudi Arabia, Japan, Brazil and India. The bill contains some exceptions; for example, goods that are served in restaurants or similar establishments, are intended for medical purposes, are produced using a genetically engineered vaccine, or are produced by use of a “genetically engineered processing aid” (such as yeast) are not subject to the labeling requirement.
Perhaps most importantly, the court of public opinion – which appears to be on the side of requiring some form of label-
ing – has not gone unnoticed by the food industry. In March 2013, Whole Foods announced that it would require all prod- ucts sold in its stores in the United States and Canada to carry labels indicating whether they contain genetically modified ingredients by 2018, and General Mills recently announced that Cheerios will no longer contain genetically modified ingredients. Perhaps sensing the inevitable, the Grocery Manufacturing Industry (the Industry), which represents major food and beverage companies, drafted a proposed bill that calls for the FDA to develop a vol- untary federal labeling standard for GMOs in an effort to squash state labeling efforts. The Industry urges that the proposed bill is a way to avoid a patchwork of state laws and proposals. The Industry is also asking the FDA to come up with a clear-cut defi- nition of “natural,” which they are urging should include GMO foods.
IV. Possible Litigation Pitfalls
Not everyone agrees. “Natural” or “all natural” is a popular but vague label that suggests simple, non-processed food. The term is confusing and has spawned lawsuits against food companies alleging that their “natural” products are anything but.
Whole Foods was sued because their 365 Everyday Value Cola, which was billed as “all natural” contained caramel flavor- ing, citric acid and carbon dioxide. Frito Lay has been sued for making “all natural” claims on certain chip products that con- tain genetically modified corn, and Ben & Jerry’s was sued for using alkalized cocoa in certain ice cream and frozen yogurts that it sells. These suits are typically brought under state consumer protection statutes, and while many have settled, the issue of federal preemption has been litigated in a few cases, with courts typically finding that the state law claims are not preempted.3
The makers of AriZona Iced Tea scored a major victory in March 2013, when the United States District Court for the Northern District of California granted their motion for summary judgment.4 The plaintiffs had alleged that high fructose corn syrup and citric acid used in certain AriZona iced teas were not “natural” as claimed, and filed suit under California consumer protection laws. The court
granted summary judgment to defendants after the plaintiffs failed to introduce any evidence that high fructose corn syrup and citric acid were not “natural,” whereas defendants had introduced expert testi- mony that these ingredients were, in fact, natural.
General Mills was also recently suc- cessful in obtaining dismissal of a putative class action involving claims that certain Nature Valley granola bars were “natural” or “100 percent natural.”5 The plaintiffs claimed that because the granola bars con- tained high fructose corn syrup and high maltose corn syrup the claims that they were “natural” or “all natural” were decep- tive in violation of New York and New Jersey consumer protection statutes. The court dismissed the suit after finding that the plaintiffs lacked standing with respect to certain products because they had not purchased them and that the plaintiffs had failed to plead fraud with the required degree of specificity.
Companies that sell GMO foods should start evaluating the costs associated with labeling and how labeling may affect their sales in the future. They may also want to consider whether some sort of voluntary labeling is in their interest.
Companies that make any kind of “natu- ral” claim should keep track of the litiga- tion involving these claims and make sure that they have the appropriate level of sub- stantiation for the claims that they are mak- ing and where appropriate tweak advertis- ing in order to avoid potential pitfalls. They also need to keep diligent records about the ingredients in their products and how those ingredients are made or processed.