As we draw closer to Election Day, the frenetic hype grows over California’s Proposition 37, a popular referendum on mandatory GMO labeling for food products. Here to sort things our with some level-headed legal analysis is fellow food lawyer Lauren Handel, currently studying at the University of Arkansas Agriculture and Food Law LLM Program. Lauren’s contribution today is her first installment of a week-long series on Proposition 37, so stay tuned for more later on in the week.

As you may have heard, there’s an election this November.  Thanks to California’s ballot initiative process, voters in that state—for better or worse—get the chance to make food law.  Through the  initiative known as Proposition 37 (or “Prop 37”), California may become the first jurisdiction in the nation to require labeling of genetically-engineered foods.  The implications of that are huge, not only for California, but for the entire country.  Some, including researchers funded by the “No on 37” campaign, predict that food manufacturers will abandon genetically-engineered ingredients if required to disclose their presence.  Also, given the so-called “California effect” on food policy, a successful labeling law in California could prompt similar legislation in other states.

Prop 37 would require that foods offered for retail sale that have been, or that may have been, entirely or partially produced with genetic engineering be labeled with a statement disclosing that fact.  As used in the ballot initiative, “genetically engineered” means that an organism’s genetic material has been manipulated through methods such as direct injection of nucleic acid into cells or fusion of cells in a way that does not occur through natural multiplication or recombination.  Thus, the proposed law would not apply to foods produced through traditional plant hybridization techniques.

If Prop 37 is enacted, beginning July 1, 2014, genetically-engineered foods that are sold at retail in California, subject to certain exceptions, will be deemed “misbranded” unless:

  • For raw agricultural products, the labeling contains the words “Genetically Engineered” on the front of the package or, for unpackaged food, on a label appearing on the retail display; and
  • For processed foods, the labeling contains the words “Partially Produced with Genetic Engineering” or “May Be Partially Produced with Genetic Engineering” on the front or back of the package.

In addition, Prop 37 would prohibit marketers from using the term “natural,” or any similar language stating or implying that food is naturally made or naturally grown, in the labeling, signage or advertising of genetically-engineered foods.  Significantly (and perhaps unintentionally?), the provision banning “natural” claims also would apply to all “processed” foods, including those not containing genetically-engineered ingredients.  Thus, if this provision becomes law, only raw, non-genetically- engineered agricultural products could be called “natural” in California.

Under Prop 37, the following categories of foods would not have to comply with the labeling requirements or the prohibition on “natural” claims:

  1. Foods from animals that have not themselves been genetically engineered (even if the animals have been fed genetically-engineered food or injected with genetically-engineered drugs);
  2. Foods not knowingly and intentionally grown, raised or produced with genetic engineering, provided that the marketer has documentation of this fact;
  3. Alcoholic beverages;
  4. Foods certified as “organic” under federal law;
  5. Foods sold in restaurants or otherwise prepared and packaged for immediate consumption;
  6. Processed foods that include genetically-engineered processing aids or enzymes, but no other genetically-engineered ingredients;
  7. Until July 1, 2019, foods that contain small amounts of genetically-engineered ingredients (i.e., that contain no single genetically-engineered ingredient comprising more than 0.5% of the total weight of the product, as long as the product does not contain more than 10 such ingredients); and
  8. Medical food.

If accepted by California’s voters, Prop 37 would be enforced by both the executive branch and the courts.  The California Department of Public Health would be primarily responsible for implementation and enforcement.  In addition, private citizens could sue alleged violators for injunctions and to recover money damages.  Prop 37 would encourage such private lawsuits by allowing successful plaintiffs to recover attorneys’ fees and other costs and by allowing suits to be brought by persons who have not been specifically damaged by, or relied on, the defendant’s alleged violation—a significant departure from the normal rule that a plaintiff has no claim unless he has been injured by the defendant’s actions.

— By Lauren Handel. Lauren is an attorney for food, beverage and farming entrepreneurs and a lover of all things related to good food and drink.  A graduate of Georgetown University Law Center, Lauren practiced for nearly ten years at a large law firm in New York City and Washington, DC where she focused on product liability and environmental litigation, as well as  workplace safety regulation. Her experience in defending and counseling Fortune 50 companies prepared her to provide the highest level of legal services to independent food and farming businesses.

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