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.”
Please see my feature article in the August 2012 issue of Packaging Digest on the “extreme” labeling requirements that might result if California voters approve Proposition 37, also known as the “California Right to Know Genetically Engineered Food Act.”
In related news, various entities are awakening to the fact that the language of Prop. 37 could potentially be read as precluding any “processed food” from being labeled or advertised as “natural,” “all natural,” or “naturally made” regardless of whether it includes GMO ingredients. See here and here. In fact, the Legislative Analyst’s Office of California, a non-partisan fiscal and policy advisor, specifically found that, “[g]iven the way the measure is written, there is a possibility that these restrictions [on "natural" labeling and advertising] would be interpreted by the courts to apply to all processed foods regardless of whether they are genetically engineered.” See here. Expect this issue to be the subject of much more discussion as the election approaches.
The American Medical Association recently adopted a “trust but verify” policy with regard to genetically modified foods. The AMA maintained its existing view that the government should not mandate the labeling of food products with “genetically modified” ingredients. ”There is no scientific justification for special labeling of bioengineered foods, as a class, and …voluntary labeling is without value unless it is accompanied by focused consumer education,” an AMA statement read in part.
The AMA voted, however, to support ”mandatory pre-market systematic safety assessments of bioengineered food.” Presently, most food companies engage in voluntary safety consultations with the Food and Drug Administration before releasing new bioenineered plants on the market.
According to one source:
This both-sides-of-the-fence position on the issue stemmed from a contentious … debate during a reference committee meeting, at which some AMA members called for mandatory labeling of genetically modified foods, while others maintained there isn’t enough science to show such foods pose any risks to human health.
The AMA’s policy on consumer education and not painting all GMO foods with the same broad brush are compelling points. Misinformation about GMO foods being inherently unhealthy has gained credibility simply because it is repeated by various sources. Indeed, a recent report on the ABC News website titled “Seven ‘Health’ Foods That Aren’t Healthy” lists allegedly phony “health claims” relating to Nutella, hot dogs and — amazingly — Kashi’s GoLean cereal. The latter is included simply because it is labeled as “all natural” but purportedly includes genetically engineered soy, with no reason given for the assertion that this product is “unhealthy” (or less healthy than non-GMO soy).
There’s an excellent article posted today by Steve Sexton on the Freakonomics website titled “How California’s GMO Labeling Law Could Limit Your Food Choices and Hurt the Poor.” Here’s a snippet:
More devastating than the label itself, could be the cost of avoiding the label on non-GE foods that may nevertheless contain trace amounts of GE material. In the U.S., the highest-grade corn can contain as much as 2% foreign material, like crop residues. In Europe, a food product can containas much as 0.9% genetically engineered material and avoid a GE label. But the California law would impose a nearly twice as stringent purity standard, tolerating only 0.5% GE content in non-GE food.
Such a high purity standard would likely require farmers to invest in separate planting, harvesting, storage, hauling, processing, and packaging equipment for GE production in order to avoid revenue losses and liability from contaminating their non-GE operations or those of competitors. Because the costs of risk reduction generally increase exponentially in the level of safety, California’s stringent purity standard may be a death sentence to GE producers who could spread the high fixed costs of contamination avoidance across only the low levels of production that the market would initially support.
Please read the entire piece in full here.
Today’s New York Times includes an excellent story on the “Battle Brewing Over Labeling of Genetically Modified Food.” As the article notes:
Regulators and many scientists say [GMO ingredients] pose no danger. But as Americans ask more pointed questions about what they are eating, popular suspicions about the health and environmental effects of biotechnology are fueling a movement to require that food from genetically modified crops be labeled, if not eliminated.
Although GMO labeling bills are percolating in several state legislatures, the most significant “battle” is the upcoming ballot initative in California, discussed in a prior post. Significantly:
Biotechnology companies say that the California labeling initiative, while portrayed as promoting consumer choice, is really an effort by some consumer and environmental groups and organic food growers to drive genetically modified foods off the market.
“These folks are trying to use politics to do what they can’t accomplish at the supermarket, which is increase market share,” said Cathleen Enright, an executive vice president at the Biotechnology Industry Organization, which represents Monsanto and DuPont.
Persons on the other side of the issue, of course, assert that they just want “transparency” in the food system in light of potential health and environmental concerns.
Please see the complete article here.
The California Right to Know campaign obtained approximately 971,126 signatures (almost twice as many as needed) for a ballot initiative that will let voters decide whether genetically engineered foods sold in California must be labeled as such. Although the campaign focused on the basic idea that consumers have a “right to know” what they’re eating, it fueled concerns about the potential health and environmental impact of GMO’s and framed the issue as a battle between consumers and big food and chemical companies.
Although the signatures have not yet been verified, everyone expects the proposed law to appear on the ballot for the November 6th general election where it will become law if approved by 50% of the voters.
Under the proposal, known as the California Right to Know Genetically Engineered Food Act, a food product would be “misbranded if it is or may have been entirely or partially produced with genetic engineering and that fact is not disclosed.” Significantly, it would also preclude food companies from ”stating or implying” that food made with GMO’s or “processed food” is “natural”, “naturally made”, “naturally grown”, “all natural” “or any words of similar import that would have any tendency to mislead any consumer.” ”Processed food” is broadly and vaguely defined as ”any food other than a raw agricultural commodity and includes any food produced from a raw agricultural commodity that has been subject to processing such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation or milling.” The kicker is that the proposed law would deem any violation as also being a violation of Civil Code section 1770(a)(5) with consumers allowed to bring private causes of action without the requirement to ”establish any specific damage from, or prove any reliance on, the alleged violation.”
A group representing a “coalition of family farmers, grocers, food companies, small businesses and others” strongly opposes the proposal and asserts that this measure would:
- Ban the sale of tens of thousands of common, perfectly safe grocery products in California unless they are specially repackaged and relabeled just for our state.
- Increase food prices for families by hundreds of dollars per year.
- Unfairly hurt California family farmers, food companies and grocers.
- Create a whole new category of frivolous and costly lawsuits that will cost consumers and taxpayers.
The ballot proposal is certainly a troubling development for food companies. There may be merit to some form of GMO labeling, but it is not served by a one-sided and ambiguous law that is based more on ideology than a full and fair analysis of the issue.
ConAgra is one of several companies accused of selling “100% Natural” products that allegedly deceived consumers because they include “unnatural” GMO-based ingredients. On February 24, 2012, ConAgra filed a Motion to Dismiss which attacks the class action complaint on numerous grounds, one of which particularly caught my attention.
ConAgra states that the consumer protection laws of various states require a plaintiff to allege that the misrepresentation was material as to her, i.e., that without the misrepresentation, plaintiff would not have acted as she did. The motion then asserts:
Plaintiffs here do not allege with particularity that the purported misrepresentation was material as to them. ConAgra has no way of knowing why the presence of bioengineered ingredients mattered to the 21 plaintiffs, if in fact it did. Was it because Plaintiffs had concerns about the safety of the product? About health effects? About sustainable agriculture? About politics or religion? Plaintiffs do not say.
This is a great argument. Plainly, the anti-GMO movement (fueled in part by “hashtag” activism) brings with it an array of motivations, some of which are based on half-truths and misinformation. ConAgra’s argument seeks to flush out these motivations as to each of the 21 plaintiffs while setting aside the impenetrable question of whether GMO ingredients are “natural” as understood by consumers. And regardless of how the plaintiffs respond, this argument will impress upon the court that plaintiffs’ motivations might be driven more by policy than by the feeling that they were actually duped.
See ConAgra’s Motion to Dismiss here.