Voices: Regulatory Issues

What's Next for GMO Labeling?

The defeat of California Proposition 37 does little to slow down anti-GMO activists.

By David TerMolen, Freeborn & Peters LLP

2012 saw a growing chorus by activists, backed by the organic food industry, to mandate labeling of foods made with genetically modified organisms (GMOs). One might think the energy behind by this movement fizzled last November when California voters rejected Proposition 37 by a margin of 52 to 48 percent. This defeat, however, has done little to slow down anti-GMO activists and the resulting pressures faced by food companies.

Indeed, 2013 will see issues continue on this hot-button topic including:

  • Continued calls for federal and state-level labeling of GMOs
  • Boycotts and on-line protests based on demands for food "transparency"
  • Continuing lawsuits targeting "all-natural" food products that include GMOs
  • The growth of food products verified as non-GMO

Two days after November's election, supporters of Prop 37 launched "GMO Inside" and asserted that "[c]orporations may have misled voters in California about GMOs, but they can't change the fact that over 90 percent of Americans support the labeling of foods with genetically engineered ingredient." This sentiment lies at the core of anti-GMO activism, which believes that "Big Food" is using money and influence to stifle regulation of GMOs. Activists are organizing an on-line, grassroots movement supported by many companies and trade associations in the organic food industry. A central objective remains mandating GMO labeling based on the belief that, if consumers realize that their food contains GMOs, they will decide to choose non-GMO food products.

At the federal level, the Just Label It Campaign led the submission of an FDA petition calling for GMO labeling based on the premise that people have a "right to know" what is in their food. This petition is supported by at least 55 members of Congress, who separately urged the FDA to modify its "outdated" belief that GMO labeling is not necessary because such foods are not "materially" different from other foods. Although the FDA is still taking public comment on the petition, most observers believe there is little chance that the petition will alter the FDA's current position.

Accordingly, anti-GMO activists are primarily focused on state-level initiatives similar to Prop 37. The next battleground is shaping up to be Washington State, where enough signatures have been collected to place a GMO-labeling initiative known as I-522 before the Washington Legislature early this year and then before voters in November. In Washington, lawmakers have the option of passing the initiative in whole, taking no action and letting the measure proceed to the ballot or crafting and passing an alternative measure to appear on the ballot alongside the original initiative.

Other state legislatures are contemplating proposals on GMO labeling, with New Mexico, Vermont and Connecticut being the most likely to have bills introduced and considered this year.

An emerging trend for 2013 are targeted protests and boycotts of "Big Food" companies that use GMO ingredients, especially companies that gave money to defeat Prop 37. Soon after the election, the Organic Consumers Association  voiced support for a boycott of natural or organic products produced by companies that were against Prop 37. Such boycotts are echoed by activist groups and gain strength through Internet blogs and related social media.

In one example, General Mills' efforts to engage its customers backfired when its Cheerios Facebook page was overrun by anti-GMO activists. Although it had solicited warm stories about childhood memories of Cheerios, the Facebook page instead received an onslaught of anti-GMO rants organized by GMOInside. The catalyst was General Mills' contribution of $1.1 million to the anti-Prop 37 campaign.

The comments focused on transparency and the "right to know" whether Cheerios includes GMO ingredients, with activists suspecting such ingredients based on the use of cornstarch and vitamin E. This case presents a valuable lesson, that food companies should closely scrutinize any marketing campaign that allows consumers to place comments on company-related websites and social media.

The defeat of Prop 37 also did nothing to slow the flood of lawsuits targeting "all-natural" products that include GMO ingredients. Indeed, on Election Day, Pepperidge Farm was slapped with a lawsuit claiming that it "has mistakenly or misleadingly represented that its Cheddar Goldfish crackers … are 'natural,' when in fact, they are not, because they contain [GMOs] … in the form of soy and/or soy derivatives."

In such lawsuits, the goals of anti-GMO activists and plaintiffs' attorneys are aligned in attacking the marketing practices of food companies and condemning GMOs as "unnatural." Significantly, despite the number of cases filed, no court has yet ruled on whether or not a GMO ingredient is "natural" because food companies have generally settled these cases to the extent they have not been disposed of through early motion practice.

Finally, 2013 will see an increase in "Non-GMO Verified" food products. As consumer awareness rises over the GMO debate, more food companies will see an opportunity to capitalize on this development by using the verification process established by the Non-GMO Project. That organization offers third-party verification of non-GMO foods, a "Non-GMO Verified" logo for use on product packaging and a website to help consumers identify non-GMO foods and associated retailers.

The most likely candidates for such certification are companies that already promote sustainability and tout "wholesome" ingredients and that primarily utilize non-GMO ingredients (or can transition to them at marginal cost). For example, Kettle brand potato chips recently announced that it will have certified non-GMO potato chips on store shelves in 2013 in light of its focus on "providing great taste, naturally."

This initiative is, of course, the flip side to demands for mandated GMO labeling. If successful, it may undermine the case for GMO labeling by deflating arguments about transparency and the consumer's "right to know."

This article originally appeared in the February 2013 issue of Food Processing Magazine.

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