by Lindsay Carlson, Drew Paris and Sheila Shah
Legislation that would require food manufacturers and retailers to label products made with genetically modified organisms (GMOs) is gaining traction throughout the country. Polls have shown widespread public support for GMO labeling laws. As of the date of this article, Vermont, Connecticut and Maine have already enacted GMO labeling laws, and bills have been introduced in at least 22 other state legislatures. Meanwhile, Congress is considering the Safe and Accurate Food Labeling Act (HR 4432), which would mandate that FDA set standards for labeling food products as it pertains to the presence or absence of GMO ingredients, and take a voluntary approach whereby industry players are allowed to choose whether to label their products as containing GMOs.
Impact on Food Litigation
The increase in proposed GMO labeling laws dovetails with an uptick in food labeling litigation. In recent years, food labeling litigation has primarily consisted of class actions involving food products that claim to be “natural." Generally, these cases are brought under state consumer protection laws, and allege that consumers are being misled by food products that are labeled as “natural," but actually contain synthetic ingredients or GMOs. Since a 2009 appellate ruling that a natural foods claim involving high-fructose corn syrup was not pre-empted by FDA, plaintiffs’ attorneys have targeted food manufacturers and retailers in similar litigation, including Kraft, ConAgra Foods, Dole, General Mills, Frito Lay, Snapple and Whole Foods Market.
The proliferation of state GMO labeling laws will likely intensify the litigation risk for food companies. Some 80 percent of foods found in grocery stores contain ingredients made from genetically modified crops. Under proposed GMO labeling laws, food manufacturers, retailers and suppliers may be subjected to new “omission" actions for failure to strictly comply with labeling requirements. GMO laws may provide an additional hook for the “natural" food litigation described above. Finally, GMO laws may be interpreted as endorsing a state policy position that a GMO ingredient is materially different from a non-GMO ingredient, and that GMO ingredients are unnatural and potentially unsafe.
Food labeling litigation has been further complicated by FDA’s silence on the issue. FDA has declined to provide guidance on these issues beyond a 1992 policy stating that GMOs do not “present any different or greater safety concern than foods developed by traditional plant breeding." Although FDA has jurisdiction, it has declined to provide a rule regarding the use of the term “natural." This regulatory ambiguity has let food companies with no choice but to make their own determinations as to whether their products may be called “natural." The proliferation of GMO labeling laws may finally force FDA’s hand.
Lessons from California
One out of every eight Americans is a Californian. Due to the size and reach of California’s economy, many companies adopt California’s standards for nationwide application. Industry insiders should therefore pay special attention to efforts to pass GMO labelling legislation in California. Though the bill was narrowly defeated on May 29, 2014, proponents have vowed to continue their fight.
Much of the proposed GMO labeling legislation is similar to California’s Proposition 65, a 1986 law designed to protect Californians from chemicals known to cause cancer, birth defects or reproductive harm. Prop 65 requires businesses and landlords to warn consumers if products or environments may result in exposure to certain chemicals above designated thresholds. With 800 chemicals within its purview, Prop 65 has touched a staggering number of products and environments in the California economy. It seems every building is equipped with a Prop 65 warning sign, and they are so ubiquitous that consumers generally ignore them.
GMO labeling laws would reach an enormous number of products. Farms are expanding the use of genetically engineered crops that are used in processed foods. The Grocery Manufacturers Association estimated 80 percent of conventional processed foods contain GMOs. Under the proposed laws, all such foods would likely be subject to labeling requirements. Prop 65 led to financial incentives for litigation, burdening businesses with cumbersome cases and extensive costs of defense. One would expect similar from GMO labelling laws becomes law.
Despite the complexity of these issues, one thing is clear: laws on this issue are rapidly evolving, and the food industry should take care to monitor these developments and prepare for potential changes in their labeling practices.
Lindsay Carlson and Drew Paris are partners, and Sheila Shahis an associate in the Los Angeles office of Alston & Bird, a national law firm of more than 800 attorneys.