— by Lauren Handel
As covered in an earlier post, this month, Connecticut became the first state in the nation to pass a bill requiring labeling of genetically-modified (GMO) foods. If signed by the Governor, as expected, the law’s GMO labeling requirements will not take effect until at least four more states, including Northeast states with a total population of at least 20 million people, enact similar legislation. Although the Maine Legislature quickly passed a similar GMO labeling bill, it is anyone’s guess as to whether or when another three states with sufficient population will do likewise. However, a significant part of Connecticut’s bill, which has received little to no attention in the press, will take effect on October 1, 2013, even if no other states adopt GMO labeling laws.
Starting October 1, persons who advertise, distribute, or sell food in Connecticut are prohibited from using the term “natural” or similar language to describe food produced with genetic engineering. Unlike federal law and that of all other states except Massachusetts, Connecticut law already limits the use of the “natural” descriptor in food labeling and advertising. Under existing Connecticut law, food may be marketed as “natural” only if it has not been treated with preservatives, antibiotics, synthetic additives, artificial flavoring, or artificial coloring; and if it has not been processed in a manner that makes it significantly less nutritive. Connecticut’s GMO labeling law adds genetically-engineered foods to the list of foods that may not be called “natural.”
Like California’s failed Proposition 37, which also included a very broad ban on natural claims, Connecticut’s bill seems to go further than lawmakers may have intended. While the bill exempts several categories of food from its requirement to label foods produced with genetic engineering – including, alcoholic beverages, food sold for immediate consumption, farm products sold directly to consumers, and food derived from non-genetically engineered animals – those exemptions do not apply to the prohibition on natural claims. Furthermore, while the GMO labeling requirement applies only to food for human consumption, the prohibition on natural claims applies to all “food,” including food for animals. In addition, whereas the bill exempts processed foods containing not more than 0.9% GMO ingredients from the GMO labeling requirement until July 1, 2019, there is no similar tolerance in the restriction on natural claims.
Given the prevalence of GMO ingredients in the marketplace, Connecticut’s law could pose significant practical difficulties for many businesses that sell food in the state. For example, unless and until goods containing GMO ingredients are labeled as such, how will retailers know whether products labeled with natural claims are misbranded? A retailer would have to assume that all processed foods without organic or other non-GMO certification contain GMOs.
Moreover, the law is problematic from a legal standpoint because it conflicts with – and, therefore, likely is preempted by – federal law. In particular, Connecticut’s prohibition on the use of “natural” may directly conflict with decisions of the US Department of Agriculture (USDA) and the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) in carrying out their responsibilities to pre-approve labels for meat products and alcoholic beverages, respectively. Neither USDA nor TTB prohibit the use of the term “natural” in labeling of products made with genetic engineering. Unless some action is taken to limit the Connecticut bill’s prohibition on natural claims, we can expect these preemption issues, among other legal challenges, to be raised in the courts.