October 29, 2014

Voters and Legislators Consider Requirements for Labeling Genetically Modified Foods

Seller Beware: Consumer Protection Insights for Industry

Food labeling is on state ballots in the West again this November. This year, it is Oregon and Colorado after similar initiatives failed in California and Washington.

Most crops and many manufactured food products in the US contain modified genetic material ("GM"). This includes 80-90% of certain foods grown in the United States, which are sometimes modified to be more tolerant of herbicides applied in the field. There are no federal labeling requirements for foods with GM. To the contrary, the FDA concluded in 1992 that it "had no basis for concluding that bioengineered foods differ from other foods in any meaningful or uniform way, or that, as a class, food developed by the new techniques present any different or greater safety concern than foods developed by traditional plant breeding," and reiterated in 2001 that it was "still not aware of any data or other information that would form a basis for concluding that the fact that a food or its ingredients was produced using bioengineering is a material fact that must be disclosed."

In the absence of federal requirements, activists have turned to the states. Although some surveys show consumers might favor having such information, efforts to enact these requirements at the ballot box have failed. Two years ago, ballot initiatives in California and Washington proposed to require labels for foods containing a certain amount of GM (California provided a 0.5% exemption for each of up to 10 ingredients, and Washington provided a 0.9% exemption until 2019). Each initiative failed by a narrow margin (51-49%).

In Vermont and Connecticut, by contrast, the state legislatures recently passed laws requiring the disclosure of GM on food labels -- enactments that have been discussed in prior posts on this blog (here). But even the future of these statutes is uncertain. The statute in Vermont, for example, is being challenged by several trade groups, including the Grocery Manufacturers Association. These groups claim that the statute violates the First Amendment and is preempted by federal law.

Activists in Oregon and Colorado recently joined the effort to impose state requirements by petitioning to include initiatives on their state's respective ballot this November that would require food labels disclosing GM. In most respects, the initiatives in Oregon and Colorado are similar to one another, and to the initiatives that failed in California and Washington. The laws would apply to raw and packaged foods for human use that were derived from organisms whose genetic material has been modified in a way that does not occur naturally. In Oregon, the packages of such food would be required to include "Genetically Engineered" on the packaging, and in Colorado, such foods would be labeled as "Produced With Genetic Engineering." And neither law would apply to food sold in restaurants.

Critics of the proposed legislation caution that requiring GM information on food labels would considerably increase the cost of food for consumers. The labels required by such legislation also would risk confusion for consumers and divert taxpayer money that could be better spent elsewhere. Moreover, the problems that food manufacturers face from state requirements are heightened by the risk that different states would enact different requirements. Unlike Colorado's proposal, for instance, Oregon's law would not apply to meat and dairy products. This risk of different requirements for different products only adds to the cost and risk of confusion associated with these statutes. Perhaps reflecting these concerns, the voter commission reports in Oregon and Colorado were opposed to these initiatives (here), although narrowly.

One possible solution to the problems raised by non-uniform state requirements, which manufacturers and growers appear to prefer, is federal legislation. Federal requirements would give consumers information about the GM contained in the foods without exposing manufacturers and growers to confusing, costly and potentially conflicting state-specific requirements that might be enforced by private litigation. To this end, earlier this year, Representative Mike Pompeo (R-Kansas) offered a bill that would impose labeling requirements for certain foods containing GMOs. Among other things, this bill would require labels to inform consumers where there is a material difference between a "bioengineered organism" and its "comparable marketed food." Should it become law, it also would eliminate the costs posed by inconsistent or conflicting laws such at those proposed in Oregon and Colorado.

However the Colorado and Oregon initiatives fare, they are not likely to be the last effort by activists to require GM labeling and by trade groups to attempt to address the interest of some consumers in this information.

© 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.


David Kouba
David Kouba
Washington, DC
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