Home » Articles » Regulatory Issues

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 This petition is supported by at least 55 members of Congress, who separately urged the FDA to modify its "outdated" belief that GMO labeling is not necessary because such foods are not "materially" different from other foods.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.

---

More Voices

What's Next for GMO Labeling?
01/18/2013
The defeat of California Proposition 37 does little to slow down anti-GMO activists.

FDA Misses FSMA Deadline - What Food Processors Can do to be Compliant for Later
07/13/2012
The Food and Drug Administration was supposed to implement the preventive controls requirement and a voluntary qualified importer program but has not met its own requirement.

New Lighting Regulations for Food Processors in 2012
12/07/2011
The Department of Energy phases out incandescent, other bulbs for energy efficiency.

Regulatory Compliance: Imports Now Under Greater Scrutiny
05/19/2011
The new Food Safety Modernization Act and PREDICT mean tougher qualifications.

Some Health Claims In Dispute
02/15/2008
FDA is re-evaluating health claims for soy, antioxidant vitamins and fat-cancer.

Regulatory Issues: New rules on reporting contamination
11/16/2007
Manufacturers will not have the option of handing recalls quietly. Information may even appear on FDA’s web site.

Regulatory Issues: Navigating the health claim maze
09/04/2007
FDA’s recent guidance focuses only on the process for evaluating evidence supporting a health claim.

Regulatory Issues: Aspartame gets scrutinized again
08/08/2007
The sweetener is the most scrutinized food additive present in the diet. Regulatory bodies around the world have agreed many times on its safety.

Regulatory Issues: Labeling reconsidered for irradiated foods
06/18/2007
Irradiation may not eliminate food poisoning, but it would be a big step in the right direction.

Regulatory Issues: Atkins put to the test
05/07/2007
Nutrition is complicated. It’s not a bad thing to question the science underlying conventional wisdom.

Wellness Foods' Regulatory Issues: It’s a Natural
04/03/2007
A “natural” claim for foods is still subject to uncertainty over standards.

Regulatory Issues: Trans fat tipping point
03/05/2007
For better or for worse, there seems to be no real, ongoing scientific debate about whether trans fats are truly dangerous.

Regulatory Issues: Food Allergen Update
02/07/2007
At the end of 2006, FDA issued Edition 4 of its Food Allergen Guidance for Industry.

Regulatory Issues: Democrats eye regulatory changes
02/01/2007
We may see the creation of a Food Safety Administration, taking all food safety activities from FDA, USDA and EPA.

Regulatory Issues: FDA considers functional foods
01/09/2007
Existing requirements for functional foods meet a very high standard; any additional requirements would exceed FDA’s statutory authority.

Regulatory Issues: A tiny bit of regulation
10/23/2006
In addition to questions about how FDA will address food nanotechnology is the question of consumer acceptance. Hopefully, we will not see a repeat of the war against genetically modified foods.

Regulatory Issues: Regulatory Roundup
09/28/2006
As the legislative year grinds to a halt, here’s what’s left – and what will be on the table when things pick up again.

Regulatory Issues: FDA reports on allergen contamination
09/27/2006
If the food industry continues to show awareness of the dangers of food allergens, FDA and Congress likely will continue with a measured and deliberative approach.

Regulatory Issues: Guard against intentional contamination
09/06/2006
The food industry is fortunate Congress and FDA have not developed more specific requirements for food security.

Regulatory Issues: Food Safety Warnings
09/06/2006
Two developments regarding the preemption of state food safety warnings the food industry should know.

Regulatory Issues: Opportunities and challenges of functional ingredients
08/07/2006
Common use in dietary supplements simply does not go far toward establishing GRAS status for a functional ingredient’s use in conventional foods.

Regulatory Issues: EU rules on health claims take a step forward
06/30/2006
Ten years in the works, the European Parliament’s review of health and nutrition claims on food labels may end a longstanding prohibition against claims relating to human diseases.

Regulatory Issues: Self-Regulation of Advertising to Children
06/29/2006
Emotions run high when it comes to advertising to kids, but processors have an alphabet soup of tools for enacting voluntary regulations.

Regulatory Issues: Trade lawyers descend on Codex
06/01/2006
No longer the province of food scientists, Codex meetings and standards play a role in the resolution of trade disputes.

Regulatory Issues: FDA may cut food-contact program
05/21/2006
The agency’s proposed budget may mean an end to the efficient and speedy Food Contact Notification Program … and two- to five-year waits for reviews.

Regulatory Issues: Marketing Products Using the Dietary Guidelines
04/04/2006
Companies must ensure that any marketing use of the guidelines is truthful and not misleading within the total context.

Questionable new tactics from the Food Police
03/29/2006
The Center for Science in the Public Interest assumes incorrectly there is no room in a healthy diet for enjoyable foods.

Regulatory Issues: FDA Denies Petition on Whole Grain Descriptors
02/23/2006
Currently, hundreds of products are marketed with “whole grain” statements, despite ambiguity concerning the regulatory status of descriptors such as “good” and “excellent” source.

Regulatory Issues: Modernization of food GMPs
01/31/2006
Most of the modernization opportunities involve written documentation or recordkeeping, suggesting FDA wants to enforce the food GMP regulations efficiently.

Regulatory Issues: Bioterrorism recordkeeping essentials
12/19/2005
This month, FDA expects food companies to start “one-up, one-down” recordkeeping.

Regulatory Issues: Natural acrylamide in food faces FDA scrutiny
12/06/2005
Are warnings for acrylamide in foods informative, premature or preempted?

Regulatory Issues: FDA Accepts Use of Existing Labels
11/01/2005
The FDA has agreed to accept requests by processors to use existing labels after the trans fat labeling effective date.

Regulatory Issues: A proposed rule is not a final rule
09/23/2005
FDA recently confirmed its reversal on “and/or” wording in ingredient statements.

Synthetic Organics Out
09/01/2005
As a result of a recent federal court decision, the use of synthetic substances in processed organic products will be restricted in the future.

Regulatory Issues: Uncertainty of allergen thresholds
08/29/2005
Unfortunately, science does not allow us to know with certainty that a particular allergenic protein will not cause a single reaction in the entire population of sensitive individuals at a given level of exposure.

Regulatory Issues: Progress on health claims in Europe
06/28/2005
Proposals look similar to what we have in the U.S; differences reflect a greater degree of skepticism toward health claims in Europe.

Regulatory Issues: What’s in a name?
06/27/2005
FDA and USDA propose new principles for food standards of identity.

Regulatory Issues: Serving up whole grains
04/04/2005
With consumers increasingly aware of the benefits of whole grains, a simple, factual statement about their presence is enough.

Regulatory Issues: Obesity Report In, Allergens Out
03/01/2005
The Obesity Working Group Report confirms calories are what count when it comes to healthy eating.

Regulatory Issues: The FDA agenda for 2005
12/28/2004
It’s not good when FDA’s scientists are demoralized and the agency stands accused of being too friendly with a regulated industry.

Regulatory Issues: COOL rules finally issued
10/07/2004
The country of origin law applies only to commodities, not processed foods.

Regulatory Issues: FDA weighs labeling changes
05/30/2004
One issue is if food packages that can be reasonably consumed at one time need to declare the whole package as a single serving.

Regulatory Issues: E.U. issues new GMO regulations
12/15/2003
The new rules may represent a step forward -- and the most that any proponent of genetically modified foods can realistically hope for

Regulatory Issues: COOL reception for country-of-origin labeling
11/15/2003
Retailers may ask suppliers to guarantee the information is correct and/or indemnify the retailer in the event of an enforcement action

Regulatory Issues: Science and food safety
07/15/2003
NAS criteria pinpoint dangers and may prompt new legislative authority for feds

Regulatory Issues: Security, safety and efficiency
05/15/2003
Two years ago, no one could have predicted that food security would so dominate FDA's priorities for 2003 and beyond