Defeat on Washington I-522 GMO Labeling

by DLA Piper
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State-sponsored GMO-labeling efforts faced defeat in Washington State’s November 2013 election. Voters rejected Washington State’s Initiative Measure 522 (I-522) proposal, 51.21 percent to 48.79 percent.1

Washington’s I-522, known as the “Mandatory Labeling of Genetically Engineered Food Measure,” had indicated strong results in early polls, with approximately two-thirds of voters supporting the initiative.  However, the “No” campaign prevailed by alerting consumers to the impact of a state-specific labeling scheme.

I-522 is one of multiple initiatives in the ongoing, state-driven GMO-labeling effort, with specific provisions aimed at mandating labels on food products produced or partially produced with genetically engineered ingredients.

The defeat is a significant win for food manufacturers. But several states have initiatives pending, while others have passed GMO initiatives.

Currently, federal law does not mandate the labeling of genetically engineered (GE or GMO)2 foods on the grounds that GE foods do not differ from other foods “in any meaningful or uniform way.”3  While proponents of mandatory GE labeling efforts argue that consumers have a right to know what they are consuming, opponents maintain that mandatory labeling reinforces the misperception that GMO crops and GE ingredients are harmful or inferior.

I-522

Under I-522, any food offered for retail sale in Washington State would have been misbranded if it is, or may have been, entirely or partly produced with genetic engineering and that fact is not disclosed “clearly and conspicuously.”4  I-522 categorized labeling requirements as follows:

  • For raw agricultural commodities, the phrase “genetically engineered” must have been disclosed “clearly and conspicuously” on the front of the package, or if not separately packaged or labeled, then on a label appearing on the retail store shelf where displayed.5
  • For processed foods containing genetically engineered ingredients, such foods would have been required to state on the front of the package, that the product was “partially produced with genetic engineering” or “may be partially produced with genetic engineering.”6  
  • For seeds or seed stock, the seed  or seed stock container, sales receipt or any other reference to identification ownership, or possession required the phrase “genetically engineered” or “produced with genetic engineering.”7

Notably, the labeling requirements would not have mandated listing which specific ingredients within the product were GMOs, nor would it have required that the term “genetically engineered” be placed immediately preceding any common name or primary product descriptor of a food.8  In addition, certain products would have been exempted, including: certified organic foods, raw agricultural commodities that have been grown, raised, produced or derived without knowing and intentional use of GE seed or food, foods sold in restaurants, medical foods, foods made with genetically modified enzymes or other processing aids, alcoholic beverages, food from animals fed genetically modified feed and (until 2019) foods containing less than 0.9 percent by weight of the processed food.9

If approved, foods produced with GE ingredients would have been required to label them as such or face potential action by the attorney general, along with a penalty up to US$1,000 per day for each mislabeled item.10  In addition, I-522 provided that any person acting in the public interest could bring an action to enjoin violation of the mandatory labeling requirements, provided the action would be commenced more than 60 days after the person gave notice of the alleged violation to the department, the attorney general, and the alleged violator.11  I-522 also specifically allowed a prevailing plaintiff reasonable costs and attorneys’ fees.12

Criticisms of I-522 and state labeling

The “No” campaign argued that I-522 was flawed and likely to mislead consumers.  Mandatory labeling on foods containing GMOs poses a potential threat to First Amendment rights and misleads consumers into believing GMOs are harmful.

Critics also argue that mandatory state labeling efforts would likely open the floodgates to litigation, particular class action false advertising litigation involving food, beverage and supplement products.  GMO ingredients have already spurred a mass number of these false advertising lawsuits around the nation, with a direct tie to trending “all-natural” lawsuits.

In addition and from an economic perspective, state-mandated labeling would likely raise prices within the state, increase taxes, create conflict with interstate commerce, and unfairly impact Washington farmers, food producers, manufacturers and grocers.

Other mandatory labeling efforts

Despite I-522’s defeat, and the recent Prop 37 defeat,13 similar mandatory labeling laws have been passed in Maine14 and Connecticut, 15 though neither goes into effect unless and until neighboring states opt in and pass similar laws.16  With the “Yes” on I-522 campaign’s concession that it lost the 2013 vote, the Yes campaign stated that “it has set the stage for victory in 2016.”17  Many proponents believe the state-led momentum will not only inspire other states, but will advance federal GMO labeling efforts as proposed by both the House and the Senate in April 201318 and receiving support from campaigns such as the Just Label It campaign.19  The Just Label It campaign further argues that even opponents of mandatory labeling would favor a federal standard.  The Grocery Manufacturers Association – I-522’s largest financial contributor – has publicly stated that it advocates for a federal solution, seeking federal preemption legislation due to the costly nature of individual state battles and the impracticality of state labeling laws.  While widespread support in Congress for mandatory labeling is lacking, it is likely that we’ll see an increasing amount of activity around food issues in the coming months and years.

Though mandatory labeling remains in flux, voluntary labeling initiatives such as the Non-GMO Project have begun to set an informal industry standard for products qualifying as “non-GMO.”20  While Non-GMO Project verification logos are prominent when placed on packaging, the Just Label It campaign has stated that a front-of-the-package warning is not necessary; rather, they “would be perfectly satisfied to see it mentioned in the ingredients panel.”21  According to the Just Label It campaign – and indicative of the trend toward GMO labeling in some respect – 64 countries globally require mandatory labeling of GE foods.22

While Washington State may have lost the most recent battle, the war is far from over, and the GMO landscape continues to develop through a combination of social media, legislative proposals, industry movements, expert opinions, case law and continued consumer litigation. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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