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November 25, 2014

California Reenters the Genetically Modified Organism (GMO) Food Labeling Arena; This Time Through the Legislature

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.

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