April 17, 2014

Representatives Introduce Bill Focusing on Genetically-Engineered Foods

Seller Beware: Consumer Protection Insights for Industry

US Representative Mike Pompeo (R-KS) joined with Representatives G.K. Butterfield (D-NC), Jim Matheson (D-UT), Marsh Blackburn (R-TN), and Ed Whitfield (R-KY) in introducing H.R. 4432, the "Safe and Accurate Food Labeling Act": a bill to provide a unified, federal response to questions about labeling requirements for genetically-engineered foods and food ingredients (GEs). GEs are present in about 80 percent of the food in the United States. The bill has the support of major players in the agriculture, food, and biotech industries, who maintain that GEs are beneficial to consumers and are necessary to global food security. The bill has also raised concerns among consumer safety organizations, who point to surveys suggesting that over 90% of Americans support GE food labeling.

This proposed bill would require the FDA to review the safety of any new GEs entering the market. Currently, many GE developers voluntarily consult with the FDA before marketing their products, although there is no requirement for them to do so. The FDA does not conduct independent research as part of this consultation, but rather reviews a safety assessment prepared by the developer, along with relevant scientific literature and agency records. Under the proposed law, this practice would be codified, and if the FDA determined that the GE was safe for consumption, the product would not need any special labels or warnings. The bill would permit voluntary labeling indicating whether foods are or are not GE.

This law would also preempt the patchwork of proposed or enacted state laws addressing the issue by requiring mandatory GE labeling. Most notably, lawmakers in Connecticut and Maine have approved mandatory labeling laws, but the laws require additional states to pass similar legislation before going into effect. Similar measures have been defeated in other states, at a cost of millions of dollars to industry members opposing it. Dozens of other states have pending bills or ballot initiatives that would require labeling of GEs.

GE labeling has often been at issue in litigation where plaintiffs complain that marketing bioengineered foods as "natural" is "false or misleading," a violation of the Federal Food, Drug, and Cosmetic Act (discussed in detail here). These claims have been the basis of numerous lawsuits, but with little success. In 2013, federal judges in the Northern District of California and the District of Colorado declined to rule on the issue, instead referring the cases to the FDA under the primary jurisdiction doctrine in order to avoid usurping the FDA's regulatory and interpretative authority.

The FDA has long held that it has no basis to conclude that most GEs differ from other foods in any meaningful way, or that, as a class, foods developed by the new techniques present any different or greater safety concern than foods developed by traditional plant breeding.

Another proposed bill, one that would require labeling of GEs, has also been introduced in the Senate and House.

© Arnold & Porter Kaye Scholer LLP 2014 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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