Monthly Archives: June 2013

USDA Approves Non-GMO Certification Label

According to the New York Times, the USDA has approved a non-GMO label claim “that meat certified by the Non-GMO Project came from animals that never ate feed containing genetically engineered ingredients like corn, soy and alfalfa.”  As explained in the article:

The U.S.D.A.’s Food Safety Inspection Service “allows companies to demonstrate on their labels that they meet a third-party certifying organization’s standards, provided that the third-party organization and the company can show that the claims are truthful, accurate and not misleading,” Cathy Cochran, a U.S.D.A. spokeswoman, said in a statement.  Ms. Cochran said the approval for labeling meats did not signal “any new policy regarding non-G.E. or non-G.M.O. products.”

Apparently, earlier efforts to obtain this label approval were rejected because the standard for non-GMO certification was either lacking or not fully vetted by the USDA.  This issue has apparently been remedied and the standards for non-GMO  certification can be found on the Non-GMO Project’s website.

Significantly, the voluntary labeling of meat and poultry products as being non-GMO certified is vastly different than the separate question of whether the FDA / USDA should require food companies to label products as containing GMO-based ingredients (or in the case of meat, that animals ate  GMO feed).   The former should not be an issue so long as a proper standard exists so consumers know what non-GMO certification means.  The latter, however, raises many thorny legal and regulatory issues that have been well documented on this blog and countless other sources.

Courts Continue to Struggle Over “All Natural” Claims for GMO Ingredients

With my trial over, I can again focus on this blog.  Sorry for the lack of recent updates.

Some interesting news in the putative class action lawsuit in which Gruma Corporation is charged with falsely and misleadingly labeling its Mission® tortilla chips as “All Natural” because they contain GMOs in the form of corn.  On April 10, 2013, Gruma moved to dismiss based on, among other things, the primary jurisdiction doctrine, arguing that the Court should defer to the FDA based on its “unique expertise and resources suited to resolving the issues presented by Plaintiff’s claims.”  As framed by Gruma:

[R]egulation of foods derived from bioengineered plants, including the labeling of those foods, is a matter in which the FDA has experience, specialized resources, and enforcement methods not available to courts.  The agency also has extensive experience with the definition of “natural.”  The issues raised by Plaintiff’s claims thus come within two spheres of FDA regulation and enforcement activity.  At the same time, however, the agency has not as yet explicitly articulated rules governing the intersection of those two spheres.  This case consequently falls squarely within the primary jurisdiction doctrine, which “allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.”

Subsequently, on June 7, 2013, District Court Judge Yvonne Gonzalez Rogers issued a “tentative ruling” in favor of Gruma based on primary jurisdiction with the parties still having the opportunity to present oral argument.  The tentative ruling observed that:

[T]he parties appear to be in agreement that the FDA has not addressed, even informally, the question of whether foods containing GMO or bioengineered ingredients may be labeled “natural” or “all natural,” or whether GMO or bioengineered ingredients would be considered “artificial or synthetic.”  Thus, as Plaintiff concedes, “[t]he [First Amended Complaint] identifies a gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs, laying out how there is no direct regulation by the FDA of the term ‘natural,’ nor any requirement that a company disclose on a food product’s label whether it contains GMOs.”

The court thus noted that deference to the FDA appeared to be the appropriate course.   After oral argument on June 11th, however, the court ordered supplemental briefing before it rendered a final ruling.

The court’s inclination to defer to the FDA, however, is continued evidence that courts realize they are ill equipped to make what is ultimately a policy-based determination on whether GMO ingrediants are “natural.”

Magic Hat Brewing Co. files trademark suit, Defendant Fights Back Using Social Media

Magic Hat Brewing Co. has filed suit against West Sixth Brewing Company for trademark infringement based on contention that it is using a logo that is confusingly similar to Magic Hat’s #9 trademarks.  A comparison of the two marks is below.   

sixnine

What makes this case especially interesting is that West Sixth has actively fought back by using social media, including  asking supporters to comments on Magic Hat’s Facebook page and an on-line petition that labels Magic Hat a “corporate bully” and asks that it drop the lawsuit immediately.   Such tactics are becoming more common and certainly make this an interesting case to watch.

Please see the Complaint here.

And apologies for the lack of recent updates.  Preparation for an upcoming trial has unfortunately eaten at my time!