United States: California Reenters The GMO Food Labeling Arena; This Time Through The Legislature

Last Updated: March 5 2014
Article by Daniel J. Herling

Not to be left behind and not dependent on any other state action (Connecticut and Maine notwithstanding), a bill has been introduced (SB 1381) on February 21, 2014 that requires any food, with certain exceptions (more on that later), offered for retail sale in California to be labeled "Produced with Genetic Engineering" or "Partially Produced with Genetic Engineering" in the California State Senate.  The Bill currently has the moniker:  The California Right To Know Genetically Engineered Food Act.

The Center for Food Safety (CFS), which helped write SB 1381 and the failed Proposition 37 (the Proposition lost in the November 2012 state election 51.4% to 48.6%), claims the new bill is a "simple, clearer version of Prop. 37."

After reviewing the bill in detail, one may respond:  "Really?"

Preamble of the Act

The Preamble to the legislation includes legislative "findings and declarations" that are, interesting, at best:

  • California consumers have the right to know, through labeling, whether the foods they purchased were produced with genetic engineering, so that they can make informed purchasing decisions.
  • Polls consistently show that the vast majority of the members of the public, more than 90%, want to know for health, economic, environmental, religious and ethical reasons, if the food they purchased was produced with genetic engineering.
  • There is currently no Federal or California requirement that genetically engineered (GE) foods be labeled.  This finding then goes on to state that 64 countries, including 3 of California's leading trading partners, already have laws mandating that foods produced through genetic engineering should be labeled.

So far, though one may want to quarrel with the poll data (I am not aware of anything that 90% of Californians would agree upon) the statements made are somewhat reasonable.

The next grouping of "Findings and Declarations", become more problematic:

  • The FDA does not require safety studies of GE foods.  This may be a true statement but the FDA does not require safety studies of any foods, except perhaps those that are designated as "medical foods."
  • Genetic engineering of plants and animals can cause unintended consequences.  Again, this statement may be true but it is not necessarily the case that unintended consequences are bad.  This was an issue of hot debate during the Prop 37 election.
  • US government scientists have stated that the artificial insertion of genetic material to plants via genetic engineering can increase the levels of known toxic cancer allergens in foods and create new toxic cancer allergens with consequent health concerns.  Again, this statement was hotly debated during the Prop 37 election.
  • Mandatory identification of foods produced with genetic engineering can provide a method for detecting, at a large epidemiological scale, the potential health effects of consuming those foods.  Again, this may or may not be true.
  • Without mandatory disclosure, consumers of foods produced through genetic engineering may unknowingly violate their dietary and religious beliefs.  This may be true but I question whether mandating labels for "religious beliefs" is constitutional.

The next grouping of "Findings and Declarations" attempt to make the argument that this bill will make California more competitive in the exporting of its agricultural products.  Some of the statements set forth in these declarations and findings are subject to interpretation and characterizing them as "findings" stretches credibility.

The last 2 declarations: are also problematic.  Declaration and Findings § 1(p) states that the people of California should have the choice to avoid purchasing foods purchased in ways that can lead to that environmental harm.  Again, this statement on its face may be true, but it certainly implies that genetically engineered foods result in environmental harm, a hotly contested scientific issue.

The final Finding and Declaration:  that the labeling of foods "can be implemented without substantial burden to either food producers or the government" is fascinating.  One can certainly see how the labeling requirement would not burden the government but food producers may feel otherwise.

The Act

The Legislature indicates that its intent is to require the labeling of all foods produced with genetic engineering sold within this state.  Of course, that's half the story.  Because of California's position as one of the leading agricultural states in the United States, if not the world, labeling of foods that are sold in California will impact non-California manufacturers and producers.  Whether this extra jurisdictional aspect of the case is constitutional (does it violate the U.S. Constitution's Commerce Clause) remains to be seen.

The Definition section of the Act is significant.  "Food" includes only food for human consumption and not any food for consumption by animals.  One can only assume then that genetically engineered feed, for example, does not have to be labeled.  One questions the basis for this entire Act if food for consumption by animals, including animals that may ultimately be consumed by California residents, do not have all the " protections" against genetically engineered foods as set forth in the Preamble.

There are also specific definitions for "genetically engineered."  Once again, "genetically engineered" does not include an animal who is not itself been genetically engineered, regardless of whether that animal has been fed or injected with any food or any drug that is produced through means of genetic engineering.  Again, if the idea behind this Bill is to protect food consumed by California residents, this carve out raises several questions.

Section 110809 of the Bill contains the "meat (pun intended)."  A raw agricultural commodity or packaged food that is entirely or partially produced with genetic engineering shall be labeled in accordance with 110809 and is misbranded if not labeled in accordance with the Article.

The Article identifies in detail how a manufacture of a raw agricultural commodity shall package its product; how a retailer of a raw agricultural commodity that is not separately packaged or labeled shall label the product for sale and how a supplier of a raw agricultural commodity shall label each container.  The labeling requirements are that the label shall be on a product in "clear and conspicuous language" on the front or back of the package with the words "produced with genetic engineering" or "partially produced with genetic engineering."

This Section does not require a label to list specific ingredients that were genetically engineered.

Enforcement of the Act

Section 110809.2 (a) permits the Attorney General to bring an Action to enjoin a violation of this Article in any court of competent jurisdiction.  Section b permits private Attorney General Actions.  Section b takes provisions from Proposition 65, requiring a 60-day notice before any action to enjoin a violation by a manufacturer retailer in any court of competent jurisdiction can be tried.  A difference from Proposition 65 is the requirement that only "an injured resident" of the state can be a party who may bring the action.  Nowhere in the Bill is the term "an injured resident" defined.  As followers of unique California statutes know, in the Business & Professions Code § 17200 (Unfair Competition Law) it required an electoral vote (Proposition 64) to define what an "injured resident" was under that statute.  If that line of reasoning prevails, one can see that an "injured resident" must be someone who at least purchased the product.  Whether the "injured resident" needs to show reliance on the label or further injury remains to be seen.

The remedy for a private Attorney General Action is an injunction to stop the manufacturer or retailer from continuing to violate the Statute.  The court may also award to a prevailing plaintiff reasonable attorneys' fees and costs incurred in investigating and prosecuting the action.  The court shall not award monetary damages.

If one was cynical, one would indicate that this hybrid enforcement provision may result in a "cottage industry" of individuals attempting to enforce the Right to Know Genetically Engineered Food Act.

Finally, the Bill delineates a whole series of potential "safe harbors" which, should a manufacturer or retailer fall within, results in no injunctive relief or attorneys' fees and costs.  The safe harbor provisions include:

  1. Package foods in which the materials produced through genetic engineering account for 9/10 of 1% or less of the total weight.
  2. Food produced without knowledge or intent to use genetic engineering — such food is produced without knowledge or intent if the food is lawfully certified to be labeled, marketed and offered for sale as "organic" pursuant to the Federal Organic Foods Production Act of 1990 (7 U.S.C. § 6501, et seq.).
  3. A manufacturer or retailer who obtains a sworn statement from a supplier that the food was produced without knowledge or intent is afforded safe harbor as well.  Additionally, a manufacturer or retailer can retain an "independent organization" to determine that the food was produced without knowledge or intent and has been segregated from and not knowingly or intentionally comingled with foods that may have been genetically engineered.  The "independent organization" has to follow a series of sampling and testing procedures in order to take advantage of this safe harbor.
  4. A retailer that is not the producer or the manufacturer of the food is not liable unless the retailer knowingly and willfully fails to provide point of purchase labeling for an unpackaged raw agricultural commodity.  It is a defense under the Action that a retailer reasonably relies on the disclosure.  Finally, no Action shall be brought under this Section against a farmer who is not a retailer or manufacturer unless the farmer swears a false statement under the Section.  In that case, he remains subject to laws pertaining to perjury and not the Act.

CFS West Coast Director, Rebecca Spector, stated that "California often paves the way for federal laws."  If SB 1381 becomes law as currently drafted, the pavement is full of potholes.  Any farmer, manufacturer, producer or retailer that does business in California selling food will need to follow closely the path of this Bill.  We will also continue to track SB 1381 and determine if the road being paved by California is smoothed out or goes over the cliff.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Daniel J. Herling
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions