In what some observers may view as a surprise, the Natural Products Association (NPA) has called for a national standard on GMO labeling. Over the past 4-5 years, the organic industry has often been at odds with non-organic producers of “natural” food products. This tension resulted from an overlap of targeted consumers and the fact that “natural” products are less costly to produce and are not governed by a strict definition of “natural” in contrast to the rules and regulations of the USDA’s National Organic Certification Program. More recently, however, foods marketed as “natural” or “all natural” have been accused by some consumer groups and in numerous class action suits of misleading consumers because they contain GMO’s that are allegedly non-natural. It’s unclear, though, whether this has impacted the NPA’s position on this issue.
In its announcement, the NPA stated that it’s working towards establishing guiding principles regarding the labeling of foods and dietary supplements containing or produced by GMO. In this regard, the NPA’s board of directors adopted the following concepts should be included:
- NPA believes consumers have the right to be informed whether genetically modified components are in their foods.
- NPA supports and encourages the voluntary labeling on non-GMO foods.
- NPA believes that consideration of federal law promoting a uniform standard is warranted to avoid separate standards for GMO labeling at the state level.
- NPA opposes a private enforcement provision, which encourages abusive litigation, to impose compliance.
- NPA supports the FDA consistently reviewing the concept of bio-equivalency of genetically modified ingredients in light of the most recent scientific studies.
Please read the NPA’s white paper on its position here.
As noted in my prior post, Whole Foods’ has decided to require that any foods sold in its U.S. and Canadian stores that contain genetically modified organisms (GMOs) be labeled as such by 2018. This announcement was made without any mention by Whole Foods about alleged or potential dangers from eating GMO food. Instead, as BusinessWeek reports, Whole Foods is basing its decision on supporting ”the consumer’s right to know.” Further:
In an interview last year with Bloomberg Businessweek, [Walter] Robb [co-CEO of Whole Foods] made the business case for higher prices in the name of transparency: “I suppose there will always be a market for the cheapest possible food, but issues around water quality, farm workers, all that stuff, keep surfacing. There will be no place to hide in terms of what your practices are and what you’re doing.”
It will be interesting to see how Whole Food’s decision impacts its suppliers and other retailers. Stay tuned.
As the endless debate about GMO labeling continues, the LA Times has a nice article on an issue I’ve highlighted before — that the First Amendment might preclude legislation or ballot initiatives that mandate the labeling of GMO ingredients. The article notes that:
Courts have ruled that forcing companies to label GM products violates their 1st Amendment right of free speech. In a 1996 case, a federal appeals court blocked a Vermont law that required dairy producers to label milk from cows that had been treated with a growth hormone made by genetically engineered bacteria. The hormone helped cows produce more milk, but the milk itself was the same as milk from untreated cows, the FDA determined. Because the law required labels to contain information that wasn’t “material” to the product, it was unconstitutional, the 2nd Circuit Court of Appeals ruled in a 2-1 decision.
Labels can be required only if they alert consumers to a change that affects a food’s composition or nutrition, its physical properties (such as shelf life), or the qualities that influence the sensory experience of smelling, tasting and eating it, the FDA says.
Not surprisingly, the FDA’s position is shaped by Court rulings on the First Amendment. In that regard, government-mandated disclosures (i.e., “compelled commercial speech”) does not generally offend the First Amendment when it prevents (or “cures”) deception or confusion. In addition, compelled disclosures may serve interests in promoting public health, which explains labeling requirements for nutritional data and common allergens.
A nice article on these First Amendment issues can be found here. And the LA Times complete article is here.
Voters may have defeated Prop 37, which would have required the labeling of foods with GMO ingredients, but the issue of GMO ingredients is definitely not going away. Two days after the election, supporters of Prop 37 launched GMO Inside, a coalition dedicated to help consumers identify GMO ingredients in their foods. Members of GMO Inside’s steering committee include Food Democracy Now!, Green America, Institute for Responsible Technology, Foodbabe, Nature’s Path and Nutiva. The press release announcing the coalition included the following statement:
“Corporations may have misled voters in California about GMOs, but they can’t change the fact that over 90 percent of Americans support the labeling of foods with genetically engineered ingredients,” said Alisa Gravitz, CEO of Green America. “The GMO Inside campaign will make it possible for all Americans to find GMOs in the food products in their homes and communities, label them, and switch to non-GMO foods instead. The campaign will show corporations that people will not complacently serve as lab rats for the testing of genetically engineered foods.”
Food companies were also reminded last week that litigation is a key tool of anti-GMO advocates by the filing of yet another class action complaint alleging that a product touted as “natural” is deceptively labeled because it is made with GMO ingredients. This time, Pepperidge Farm, Inc. (owned by Campbell Soup, Co.) is the target of a putative class action suit filed in federal court in Colorado alleging that Pepperidge Farm “has mistakenly or misleadingly represented that its Cheddar Goldfish crackers … are ‘Natural,’ when in fact, they are not, because they contain Genetically Modified Organisms … in the form of soy and/or soy derivatives.” See the entire complaint here.
As the above image shows, however, the product is not described as “All Natural” or “100% Natural” and its “Natural” claim is somewhat qualified by the “No Artificial Preservatives” statement. A key issue will thus be whether a reasonable consumer perceives this language as a qualification or instead views “Natural” in this context as synonymous with “100% Natural.”
California voters rejected Prop 37, the ballot initiative that would mandate the labeling of foods with any genetically-modified ingredients. According to the San Francisco Chronicle, the proposed labeling law is headed for a clear defeat with 94% of all precincts reporting.
“We said from the beginning that the more voters learned about Prop. 37, the less they would like it,” said Kathy Fairbanks, a spokeswoman for the opposition. “We didn’t think they would like the lawsuits, more bureaucracy, higher costs, loopholes and exemptions. It looks like they don’t.”
The California Right to Know campaign issued a press release today which stated, in part, as follows:
Yesterday, we showed that there is a food movement in the United States, and it is strong, vibrant and too powerful to stop. We always knew we were the underdogs, and the underdogs nearly took the day. Dirty money and dirty tactics may have won this skirmish, but they will not win the war.
Today, we are more than 4 million votes closer to knowing what’s in our food than when we started. This is a victory and a giant step forward. We are proud of our broad coalition of moms and dads, farmers, nurses, environmentalists, faith and labor leaders who did so much with so few resources to bring us to this point, and we will carry forward.
Please see the entire article from the San Francisco Chronicle here.
The Los Angeles Times is urging California voters to say “no” to Proposition 37, which would mandate the labeling of foods with genetically modified ingredients.
In most cases, there is no requirement to inform consumers, via labels, about the use of pesticides, hormones or antibiotics, or about the inhumane conditions in which animals are often kept. But Proposition 37 would make an exception for genetically engineered food, requiring that it be labeled before being sold in California. Although we generally endorse people’s right to know what goes into their food, this initiative is problematic on a number of levels and should be rejected.
One of the problems identified in the Editorial include an issue I raised in earlier posts — that the initiative “is sloppily written” and “contains language that … could be construed by the courts to imply that processed foods could
not be labeled as ‘natural’ even if they weren’t genetically engineered.”
Other problems the LA Times identifies with the proposal include:
- “Most of the burden for ensuring that foods are properly labeled would fall not on producers but on retailers”;
- “Enforcement would largely occur through lawsuits brought by members of the public …, a messy and potentially expensive way to bring about compliance”;
- “there is little if any evidence that changing a plant’s or animal’s genes
through bioengineering, rather than through selective breeding, is dangerous to the people who consume it”; and
- “the marketplace already provides ways to inform consumers about their food” and ”food producers are welcome to label their foods as GE-free” and “Organic foods are never genetically engineered.”
Please read the complete Editorial here.
Please see my “Power Lunch” article at FoodProcessing.com on the GMO-labeling ballot initiative in California titled Proposition 37: Food Transparency or Increased Organic Food Sales?
Here’s a link to a link to a NY Times opinion piece on how the French group that authored the rat study on genetically engineered corn generated press coverage that didn’t have the benefit of analysis or cross-checking. The article quotes extensively from the Embargo Watch blog which first reported on a disconcerting aspect of how the study was promoted:
Breaking with a long tradition in scientific journalism, the authors allowed a selected group of reporters to have access to the paper, provided they signed confidentiality agreements that prevented them from consulting other experts about the research before publication.
Normally, a press embargo on scientific research allows journalists to seek outside comment during the embargo period to provide appropriate analysis and comment on the merits (or lack thereof) of the research. Thus, the French research group created a situation where journalists felt compelled to provide an essentially verbatim report on the alleged findings of the study after the embargo lifted. Evolutionary biologist Michael Eisen labels this a suspect study “done by people out to prove something rather than investigate something.”
“This affects every aspect of the work, from study design, to execution, interpretation and publicity…. The result of all of this severely tainted work (and there’s plenty from the pro-GMO side too) is that the really good science in the field gets drowned out, and isn’t taken seriously because people just assume that it, too, must be biased. Total mess.”
The elephant in the living room is California’s Proposition 37, on which I’ve written about extensively in prior posts. It seems self-evident that the release strategy by the French research group was designed to help influence popular opinion on this issue where the fear-mongering tactics of some anti-GMO groups has been attacked by opponents of GMO labeling as lacking any scientific support.
NBC News posted an article today titled “Lawyers Pepper Food Firms With Lawsuits Over Labeling.” It’s a general overview of the flood of labeling lawsuits, with some notable quotes from consumer “watchdog” groups and plaintiff’s attorneys who are leading the attack against food companies for their labeling practices.
On a related note, another class action suit is challenging the “All Natural” labeling on Frito-Lay’s bean dip on the grounds that it contains genetically modified soy. See Altman v. Frito-Lay North America, Inc., No. 12-cv-61803 (S.D. Fla.). The Altman suit follows on the heels of Foust v. Frito-Lay, No. 1:12-cv-21975 (S.D. Fla.) and Berkowitz v. Frito-Lay, No. 1:12-cv-22436 (S.D. Fla.) which target Frito-Lay’s bean dip and “all natural” chips because of GMOs. The “nearly identical” Foust and Berkowitz suits were found to be related actions and are now pending before the same judge. And on September 21, 2012, Frito-Lay moved to transfer the Altman suit to the same judge for the exact same reasons.
Frito-Lay wants to include the new lawsuit in a pending motion to transfer the Foust and Berkowitz suits to the Eastern District of New York because of “substantial overlap” between the Florida cases and three earlier-filed and consolidated lawsuits in New York. See Frito-Lay North America, Inc. “All Natural” Litigation, No. 12-cv-408 (E.D.N.Y). Frito-Lay asserts that all of these suits have copy-cat complaints relating to the use of GMO’s with “all natural” claims and that they include the same basic allegations and seek the same types of relief.
Notably, one of the New York cases was just transferred to that venue from the Northern District of California. Plainly then, Frito-Lay wants to have the question of whether it’s deceptive or misleading to use GMO ingredients in a product labeled as ”all natural” answered in a New York courtroom. This makes sense for a host of reasons while also decreasing defense costs. Moreover, this tactic takes advantage of the principle that, when a plaintiff seeks to represent a nationwide class, her choice of forum receives less deference than in other circumstances.
The U.S. Solicitor General has recommended that the U.S. Supreme Court not hear a case over whether the doctrine of patent exhaustion applies to Monsanto Co.’s herbicide-resistant Roundup Ready soybean seeds. A lower court held that farmer Vernon Bowman infringed the patents on the seeds through a “second planting” using so-called “commodity seed” obtained from local grain elevators. Bowman contends that his purchase of Monsanto seeds was an authorized sale and that Monsanto’s claims are thus precluded under the doctrine of patent exhaustion which provides that a patent holder cannot control a patented product after the first authorized sale.
Significantly, the seeds Bowman purchased were subject to a Technology Agreement in which licensed growers agreed: (1) “to use the seed containing Monsanto gene technologies for planting a commercial crop only in a single season”; (2) “to not supply any of this seed to any other person or entity for planting”; (3) “to not save any crop produced from this seed for replanting, or supply saved seed to anyone for replanting”; and (4) “to not use this seed or provide it to anyone for crop breeding, research, generation of herbicide registration data, or seed production.” Although licensees could sell seed to grain elevators for commodity use such as cattle feed, it excluded replanting.
But in light of recent Supreme Court law on this subject — most notably Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008) – Bowman argued that “[s]ales of second-generation seeds by growers to grain elevators, and then from grain elevators to purchasers (like Bowman) are authorized … and are thus exhausting sales….”
In a brief filed Aug. 24, U.S. Solicitor General Donald Verrilli argues that the Federal Circuit correctly held that the exhaustion doctrine is of no consequence because, even if Bowman’s purchase was an “authorized first sale,” Bowman created new seeds when he planted them: “[O]nce a grower … plants the commodity seeds containing [Monsanto's] Roundup Ready technology and the next generation of seed develops, the grower has created a newly infringing article.” The Solicitor further notes that the lower court properly rejected the argument that replanting was the only use for the “commodity seed,” noting that the seed was useful for, among other things, animal feed. Finally, the brief notes that the patent-exhaustion doctrine still applies to self-replicating technology like seeds and that, after an authorized sale, Monsanto lost the right to control the use of the seed. Nevertheless, it still holds the exclusive right to make the seeds.