Proposition 37 Permits "Natural" Labeling for Non-GMO Processed Food

by Sheppard Mullin Richter & Hampton LLP
Contact

[authors: Peter Hecker, Neil Popović, and Robert Uram]

Proposition 37, the California Right to Know Genetically Engineered Food Act ("Prop 37”), if approved by the voters on November 6, 2012, will provide that food offered for retail sale in California produced with genetic engineering (“GMO food”) is misbranded unless clearly labeled to say it is genetically engineered. Prop 37 also provides that GMO “processed food” may not on its label, store signage, advertising or promotional materials state or imply that the food is “natural” or words of similar import.

Ballot materials prepared by the Legislative Analyst’s Office (LAO) state that Prop 37 could be interpreted to mean “processed food” is subject to the prohibition against “natural” labels, even if it is not produced with genetic engineering. In our view, this is not the correct interpretation of Prop. 37.

THE FINDINGS, STATEMENT OF PURPOSE AND LANGUAGE OF PROPOSITION 37 DEMONSTRATE THAT THE LABELING REQUIREMENTS ARE DIRECTED TO FOOD PRODUCED WITH GENETIC ENGINEERING, NOT TO PROCESSED FOOD IN GENERAL

The Findings and Declarations in Proposition 37 state that “California consumers have the right to know whether foods they purchase were produced using genetic engineering," and that "The labeling, advertising and marketing of genetically engineered foods using terms such as 'natural,' 'naturally made,' 'naturally grown,' or 'all natural' is misleading to California consumers.”

The Statement of Purpose provides: “The purpose of the measure is to create and enforce the fundamental right of the people of California to be fully informed about whether the food they purchase and eat is genetically engineered and not misbranded as natural so that they can choose for themselves whether to purchase and eat such foods.”

These statements show concern about misbranding of genetically engineered food as natural, but not about labeling non-GMO processed food as natural.

Section 110809, Disclosure With Respect to Genetic Engineering of Food, provides that "any food offered for retail sale in California is misbranded if it is or may have been entirely or partially produced with genetic engineering and that fact is not disclosed." Subdivision (c) of § 110808 defines “genetically engineered”; and subdivision (d) defines “processed food.”

Section 110809.1, Misbranding of Genetically Engineered Foods as 'Natural,' provides:

In addition to any disclosure required by Section 110809, if a food meets any of the definitions in subdivision (c) or (d) of Section 110808 . . . the food may not in California, on its label, accompanying signage in a retail establishment, or in any advertising or promotional materials, state or imply that the food is "natural," "naturally made," "naturally grown," "all natural," or any words of similar import that would have any tendency to mislead any consumer.

The title of § 110809.1 highlights the fact that it applies to "Misbranding of Genetically Engineered Foods as 'Natural.'" The introductory phrase, "In addition to any disclosure required by section 110809," clarifies that the “natural” labeling restriction in § 110809.1 applies only where disclosure is already required—i.e., for food that "is or may have been entirely or partially produced with genetic engineering."

Basic rules of statutory interpretation require a law to be construed consistently with its purpose and to avoid absurd results. Construing § 110809.1 to prohibit “natural” labels on non-GMO processed food would violate these rules. Under § 110808(d), "processed food" includes any food subject to "canning, smoking, pressing, cooking, freezing, dehydration, fermentation or milling." Prohibiting "natural" labels on "processed food" regardless of whether it is genetically engineered would affect foods such as 100 percent fruit juice, pure nut butters, dried fruit, flour, ice cream, and virtually any food that is not raw, freshly harvested and unprocessed. Such a result would confound consumer expectations, and it is not consistent with Prop 37’s purpose of protecting consumers against undisclosed use of genetic engineering.

STATUTORY INTENT SUPPORTS THE VIEW THAT PROPOSITION 37 IS LIMITED TO FOOD PRODUCED WITH GENETIC ENGINEERING

Background materials for Prop 37 focus on the right to know whether food is genetically engineered, with no expression of intent to regulate "natural" marketing in any other context. In submitting Prop 37 to the Attorney General’s Office for review, the LAO described the measure as "a proposed statutory initiative related to the labeling of genetically engineered (GE) food products," noting: "the measure prohibits the use of terms such as 'natural,' 'naturally made,' 'naturally grown,' and 'all natural' in the labeling and advertising of any food that is genetically engineered." The official Yes on 37 website states that the prohibition on “natural” marketing does not apply to food that is not genetically engineered.

THE SINGLE SUBJECT RULE SUPPORTS THE VIEW THAT PROPOSITION 37 IS LIMITED TO FOOD PRODUCED WITH GENETIC ENGINEERING

Article II, § 8(a) of the California Constitution, the “single subject rule,” provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." It is settled that courts should construe laws to avoid unconstitutionality. According to the California Supreme Court, "a measure complies with the [single subject] rule if its provisions are either functionally related to one another or are reasonably germane to one another or the objects of the enactment." The object of Prop 37, as expressed in its title and text, is to require disclosure if food sold in California is genetically engineered. A provision that prohibits "natural" labels on nongenetically engineered food would not be germane to the other provisions of Prop 37 or to its object. A court would avoid such a construction because it would violate the single subject rule, rendering the entire measure unconstitutional.

ABOUT THE AUTHORS

The authors are partners in the San Francisco office of Sheppard Mullin Richter & Hampton, LLP, where their practices include food labeling, organic, consumer class action defense, and environmental law.

Peter Hecker, Partner
415.774.3155
phecker@sheppardmullin.com

Neil Popović, Partner
415.774.3156
npopovic@sheppardmullin.com

Robert Uram, Partner
415.774.3285
ruram@sheppardmullin.com

Note: This summary is for informational purposes and is not intended to provide legal or other advice or to create an attorney-client relationship. The opinions expressed herein are those of the authors and may not reflect the opinions of the firm, its clients or any other attorney.

 

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.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP
Contact
more
less

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.