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Prop 37 Archive

California’s Prop 37, GMO Labeling, Part 4

September 28, 2012

Lauren Handel is back to conclude her series on California’s Proposition 37, today addressing the real logistical challenges businesses will face when the time comes to comply with this law.

If Prop 37 passes (which, according to a recent poll, seems likely), and if it is not stayed or struck down by the courts, manufacturers, retailers, and distributors of food sold at retail in California will have to make some significant and potentially costly changes to ensure they comply by July 1, 2014.

The most obvious implication of Prop 37 is that food labels and retail displays will have to be changed for many foods sold at retail in California. It has been reported that 60 to 70 percent of processed foods sold in U.S. grocery stores contain at least one genetically-engineered ingredient. Because the vast majority of corn, soybeans, and sugar beets produced in this country are genetically engineered, chances are that any product made with an ingredient derived from those crops would come within Prop 37’s labeling requirement.

These are the basic components of virtually every food there is to eat on supermarket shelves. Almost all products would have to be re-labeled on the front or back of the package with the required language, “Partially Produced with Genetic Engineering” or, to the extent the manufacturer is uncertain about whether the product contains genetically-engineered ingredients (or cannot document that it does not contain genetically-engineered ingredients), with the words “May be Partially Produced with Genetic Engineering.”

Food makers will have create special labels for those products destined for the California market, or make California-compliant labels for all products meant for nation-wide distribution.

In addition, for all processed foods—except those that are certified organic, that are derived entirely from a non-genetically-engineered animal, and alcoholic beverages—any language stating or implying that the product is “natural” would have to be removed from the label. As of July 1, 2014, if a retailer has products in inventory that are not properly labeled, they would have to be removed from the shelves and could not be offered for sale to consumers.

In order to enforce the labeling provisions, Prop 37 would impose extensive recordkeeping obligations. Based on the text of Prop 37, any food producer or marketer who wants to avoid labeling their products as genetically engineered (or as potentially containing genetically-engineered ingredients) would have to generate and maintain extensive records to document that their products have not been intentionally produced with genetic engineering. That is because the law would presume that foods have been produced with genetic engineering unless the manufacturer and everyone else responsible for complying with Prop 37—i.e., everyone in the supply chain from the manufacturer to the retailer—obtains a sworn statement from their direct supplier attesting that the food or ingredient has not been knowingly or intentionally genetically engineered and that it has been segregated from food that may have been genetically engineered. So, even if a manufacturer has no reason to believe that its product is made with genetically engineered ingredients, to avoid labeling the product “May be Partially Produced with Genetic Engineering,” the manufacturer would have to obtain an affidavit from each of its ingredient suppliers, maintain those records with some tracking system linking affidavits for particular lots of ingredients to the batches of finished products produced with those ingredients, and provide a similar affidavit to its customer which would have to do the same thing until the product reaches the retailer.

Presumably, by regulation, the California Department of Health could limit some of the recordkeeping burdens by carving out entire categories of foods that would not have to comply with Prop 37’s labeling requirements because no genetically-engineered variety exists in the marketplace (for example, most whole fruits and vegetables) or because the ingredients used in the food (perhaps, as defined by a regulated standard of identity) are not genetically engineered. However, such exemptions would not apply to products made with ingredients derived from corn, soybeans, sugar beets, canola or other crops that are likely to have been genetically engineered or commingled with genetically engineered crops.

Although violations of Prop 37’s requirements would be difficult to police, the consequences for noncompliance would be serious. Foods offered for retail sale in California that do not comply would be deemed “misbranded.” It is illegal to manufacture, sell, offer for sale, store or deliver “misbranded” food. Violators are subject to criminal or civil prosecution, and the product may be seized or embargoed by the state. Violations of Prop 37’s requirements also would be deemed “unfair or deceptive acts” in violation of California’s Consumer Legal Remedies Act, which permits private citizens to sue individually or through a class action for compensatory damages, injunctions, and punitive damages. Significantly, to bring such a suit, plaintiffs would not have to show that they had been damaged by or relied on the defendant’s allegedly deceptive label. Prop 37 also would allow private citizens to sue violators under the Health and Safety Code for injunctions and, if successful, for their costs incurred in investigating and prosecuting the action.

– by Lauren Handel

California’s Prop 37, GMO Labeling, Part 3

September 27, 2012

Lauren Handel is back today with further insight into the possible legal objections to California’s Proposition 37, the popular referendum on mandatory GMO labeling of food products. Once again, she puts policy and science debates to the side and examines just how challenging it will be for Prop 37 to successfully navigate our constellation of existing food laws. 

In addition to the First Amendment challenges Prop 37 that we covered yesterday, the opponents of the measure will seek to invalidate the law on the grounds that it is preempted by federal food labeling requirements.  Preemption is the constitutional principle that federal law trumps state law.  State laws may not conflict with federal laws.  Specifically with regard to food labeling, the Food, Drug, and Cosmetic Act (“FDCA”), Federal Meat Inspection Act (“FMIA”) and the Poultry Products Inspection Act (“PPIA”) all contain provisions expressly stating that they preempt conflicting state laws.

Opponents of Prop 37 have a strong argument that the law would be preempted by FMIA and PPIA to the extent it would regulate the labeling of meat and poultry products.  That is because FMIA and PPIA prohibit state labeling requirements for meat and poultry products  “in addition to, or different than” federal requirements.  Prop 37 would impose requirements “in addition to [and] different” from federal requirements because it would require labeling of genetically-engineered meat or poultry products whereas no such requirement exists in federal law.  In addition, Prop 37 would impose different requirements in direct conflict with federal law in that it would prohibit “natural” claims on minimally-processed meat and poultry products that would be permitted—and could even be pre-approved by USDA—under federal law.

In contrast, Prop 37’s requirements for labeling foods within the ambit of FDCA (nearly everything other than meat and poultry) probably are not preempted.  FDCA’s preemption language prohibits state labeling requirements that are “not identical to” federal requirements.  In interpreting this provision, courts have held that states may impose labeling requirements addressing issues not regulated by FDA.  Because FDA has not regulated the use of “natural” claims, many courts have held that states are free to do so.  The same analysis should apply to regulation of genetically-engineered food labels.  Because FDA policy does not require nor prohibit disclosures that foods are genetically engineered, Prop 37’s disclosure requirement (with respect to foods other than meat and poultry) should not be preempted.

Nevertheless, challengers may argue that Prop 37 is preempted because it would conflict with FDA ingredient labeling requirements.  A  recent decision of a federal court in California held that state requirements to disclose of genetically-engineered ingredients are preempted by FDA’s exhaustive regulation of ingredient listings.  That decision, however, does not apply to Prop 37 because Prop 37 would not require manufacturers to identify ingredients that were genetically engineered.  Rather, Prop 37 would require only a statement on the front or back of a package stating that a food is genetically engineered or has been produced with genetic engineering.

A somewhat better argument for preemption might be that, in requiring manufacturers to identify products as genetically engineered, Prop 37 would cause them to violate FDCA’s prohibition against making misleading claims.  The argument would be that a “genetically-engineered” label would mislead consumers into believing that the food is materially different than (and inferior to) a comparable product containing traditional ingredients.  While this argument may have some appeal in light of FDA’s position that genetically-engineered foods are no different than their traditional counterparts, FDA has stated (albeit in a draft guidance document) that simple, factual statements of the type Prop 37 would require—that a food is genetically engineered or contains genetically-engineered ingredients—are not likely to be misleading.  Although FDA’s guidance on this issue would not be binding on a court, it is some evidence that the agency would not consider the disclosure claims required by Prop 37 to run afoul of FDCA’s prohibitions against misleading claims.

–by Lauren Handel

California’s Prop 37, GMO Labeling, Part 2

September 26, 2012

Regulating food is never simple. Here again with some insight on California’s Proposition 37 is Lauren Handel, our newest contributing food law attorney. Without regard to the policy arguments for or against GMO labeling, which are approaching hyperbole on either side of the debate, Lauren addresses the policy-neutral issues this law may face if passed by the people of California. Today, it’s Free Speech (didn’t see that coming?), and tomorrow it’ll be doctrine of Federal Preemption. 

Regardless of the policy merits of their position, opponents of Proposition 37 have a valid point that the referendum will be unconstitutional on the grounds that it infringes on freedom of speech protected by the First Amendment.

The First Amendment not only limits government’s power to prohibit speech; it also limits government’s power to compel speech.  Prop 37 would regulate speech both by prohibiting certain statements—that foods are “natural” if they have been produced with genetic engineering or processed in any way—and by compelling certain statements—that products are “Genetically Engineered,” “Partially Produced with Genetic Engineering” or “May Be Partially Produced with Genetic Engineering.”

From a First Amendment standpoint, Prop 37’s prohibition on “natural” claims is its most problematic provision.  To defend that part of the law, California would have to establish that it has a substantial interest in protecting consumers from being deceived by “natural” claims and that the prohibition directly serves the state’s interest without overly infringing on speech.  With regard to genetically-engineered products, there is at least some reason to think that “natural” claims confuse consumers and cause them to believe products are not genetically engineered.  (Remember the Kashi story?)  And many lawsuits have been brought (for example, against Snapple and General Mills) alleging that “natural” claims are deceptive when products contain highly processed ingredients, such as high fructose corn syrup.  However, it is utterly implausible that a ban on “natural” claims is necessary to prevent consumer confusion with regard to minimally processed, traditional foods that most people would think of as natural—including non-genetically-engineered canned, cooked, or frozen foods containing no artificial ingredients.  In that regard, Prop 37 goes too far.

Prop 37’s requirement to compel disclosure statements identifying genetically-engineered foods has a somewhat better chance of withstanding a First Amendment attack.  The government may compel purely factual  disclosures to consumers for purposes of preventing consumer deception.  The disclosures required by Prop 37—simple statements indicating that the product is genetically engineered—are factual in nature.  But there is room for debate as to whether the disclosures serve the state’s interest in preventing consumer deception.

Opponents of Prop 37 will argue that consumers cannot be deceived by the absence of a “genetically engineered” label because genetically-engineered foods are deemed not materially different than their traditional counterparts.  In fact, it is the policy of the federal government, as determined by FDA, that genetically-engineered foods are not materially different than traditional foods and, therefore, labeling  is not needed to prevent consumer deception.  If there is no material difference between genetically-engineered foods and traditionally-produced foods, the opponents of Prop 37 will argue, the law would serve only an interest in satisfying consumer curiosity.  But the interest in consumer curiosity, by itself, has been held by one federal appeals court to be insufficient to support a law compelling commercial speech—in that case, a Vermont law requiring labeling of dairy products produced with synthetic hormones.

To defend Prop 37’s disclosure requirement, California will have to convince the court that the provision is related to the government’s interest in preventing consumer deception (as opposed to merely gratifying curiosity) or that it directly serves another substantial state interest, such as an interest in protecting human health or the environment.  Given that science has not proven genetically-engineered foods to be dangerous, it may be difficult for California to establish that Prop 37’s disclosure requirement serves a legally-recognized, substantial state interest.  At the heart of the matter will be a dispute about whether the state has a legitimate interest in protecting consumers’ “right to know” how their food has been produced.  That Americans overwhelmingly support labeling of genetically-engineered foods indicates that they believe they should have such a right; but, so far, it has not been recognized by the courts.

I predict that if Prop 37 passes, the lawsuit challenging it will contain a First Amendment Element.

by Lauren Handel

California’s Prop 37, GMO Labeling

September 24, 2012

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.