State GMO Labeling Laws: Friend or Foe?

Despite Vermont’s passage of its GMO labeling law and other states’ consideration of similar statutes, food manufacturers continue to support uniform federal legislation over the hodgepodge state-by-state approach that is developing. Pessimists among us might say that the FDA has been too slow to act and the war has already been lost. A careful review of Vermont’s labeling law, however, reveals that the proverbial glass may, in fact, be half full – at least to manufacturers of products that contain small amounts of GMO ingredients.

Vermont’s groundbreaking law provides that “a manufacturer of a food produced entirely or in part from genetic engineering shall not label the product on the package, in signage, or in advertising as ‘natural, ‘naturally made,’ ‘naturally grown,’ ‘all natural,’ or any words of similar import that would have a tendency to mislead a consumer.” The law, however, contains an exclusion for foods that contain GMO materials that, in the aggregate, do not account for more than 0.9% of the total weight of the processed food. Thus, Vermont’s GMO labeling law may actually provide food manufacturers with a powerful weapon, inasmuch as it seemingly authorizes the use of phrases such as “all natural” when the products at issue contain nominal amounts of GMO ingredients – 0.9% or less.

Tenacious plaintiffs’ lawyers, of course, will argue that the Vermont statute does not in any circumstance authorize the use of the phrase “all natural” but, rather, merely exempts products containing 0.9% or less GMO ingredients from its labeling requirement. Stay tuned, as the foregoing will likely be one of many battlegrounds surrounding Vermont’s statute.

Another half-filled glass lies in California’s GMO labeling bill known as S.B. 1381, which cleared the California Senate Appropriations Committee on May 23, 2014. If passed, the bill will require manufacturers to label certain foods containing GMOs. Like Vermont’s statute, the bill contains a number of exceptions, one of which is for packaged food in which the materials produced through genetic engineering account for 0.9% or less of the total weight. Although the California bill as presently drafted does not contain language that explicitly authorizes the use of phrases such as “all natural” on labels of  products containing nominal amounts of GMOs, it may nevertheless become a valuable weapon in opposing false labeling suits since it establishes a threshold level below which  products need not bear GMO labeling. More importantly, an argument can be made that a reasonable consumer would not expect products labeled as “all natural” to be GMO-free but, rather, to contain 0.9% or less GMO material.

It should be noted that prior attempts to impose GMO labeling legislation in California failed in the face of stiff opposition from industry. Maine and Connecticut have passed GMO labeling laws with similar threshold limits. Those laws, however, are not yet in effect.

Stay tuned. Tomorrow may be a sunny day or perhaps it will rain. It all depends upon your perspective.

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Posted in "All Natural", Class Action, Food and Drug Administration, Food Manufacturer, Genetically Modified Organism, GMO, High Fructose Corn Syrup, Labeling Claims, Regulation

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Cozen O’Connor has a national team of attorneys experienced in handling food contamination and product recall coverage matters related to first-party, third-party and specialty policies. The firm also developed a Food, Beverage & Nutritional Products Industry Team to provide advice and counsel to a wide range of companies connected directly and indirectly to the food and beverage industry.
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