While Prop 37 did not pass, the failure to disclose the presence of GMOs in foods that are marketed as ‘natural’ is still generating a steady stream of civil litigation, with Goldfish Crackers the latest brand to be targeted in a class action lawsuit over genetically engineered ingredients.
In a complaint filed in a US district court in Colorado last week, plaintiff Sonya Bolerjack alleged that Pepperidge Farm (owned by Campbell Soup) had “mistakenly or misleadingly represented that its Cheddar Goldfish crackers are ‘Natural’ when in fact, they are not, because they contain genetically modified organisms (GMOs) in the form of soy and/or soy derivatives.”
Bolerjack, who is represented by law firm Howard w. Rubinstein, alleges that “genetically modified soy products contain genes and/or DNA that would not normally be in them, and are thus not natural.”
Seeking to represent a nationwide class of consumers who purchased the crackers since November 2008, Bolerjack alleges violation of Colorado’s Consumer Protection Act, breach of express warranty and negligent misrepresentation, and seeks damages and a jury trial.
A spokeswoman for Pepperidge Farm told FoodNavigator-USA: "We don't comment on the specifics of pending litigation but we are confident in the accuracy of our labels and stand behind our products."
Attorney: I would still expect enterprising plaintiff lawyers to bring lawsuits for all-natural claims made with GMO ingredients
Justin Prochnow, an attorney in the Denver office of law firm Greenberg Traurig, said the action proved that food companies remained vulnerable to lawsuits over the use of GMOs, regardless of the defeat of Californian GMO labelling initiative Proposition 37 .
He added: "I am sure the close margin will only encourage proponents to renew efforts next go-around, perhaps with some changes to the private right of action provisions which seem to be the real sticking point for many opponents.
"Lest you think that issue is tabled for now, I would still expect enterprising plaintiff lawyers to bring lawsuits for all-natural claims made with GMO ingredients."
NPA: Having a patchwork of different state laws on GMO labeling is not in industry's best interests
Indeed, few industry sources FoodNavigator-USA spoke to at the Supply Side West trade show last week expect the GMO labeling issue to go away, with several predicting more copy-cat proposals in other states.
Speaking at an election special session at the show last Thursday, Natural Products Association president John Shaw said this would be bad news, adding: "Having a patchwork of different state laws that address the GMO issue is not in the industry's best interests."
Should such a scenario emerge, a federal solution may have to be developed in order to ensure that labeling is consistent across all states and that some of the problematic aspects of Prop 37 are addressed such as the 'natural' definition and the bounty hunter clauses, added Council for Responsible Nutrition government relations VP Mike Greene.
Just Label It: Federal GE foods labeling must now be the focus
Meanwhile, Proposition 37 backers including Food Democracy Now, Green America, Institute for Responsible Technology, Foodbabe, Nature's Path and Nutiva have vowed to renew efforts to force food companies to label products containing genetically engineered ingredients with a new ‘GMO inside’ initiative.
Consumer advocacy groups are also collecting signatures for a GMO labeling measure on Washington’s 2013 ballot, and say they will continue to urge the Food and Drug Administration to take action at a federal level.
Just Label It Campaign Director David Bancroft said: “Federal GE foods labeling must now be the focus.”
Prop 37 supporters back new ‘GMO inside’
Alisa Gravitz, CEO of Green America , added: "Corporations may have misled voters in California about GMOs, but they can't change the fact that over 90% of Americans support the labeling of foods with genetically engineered ingredients.
"The GMO Inside campaign will make it possible for all Americans to find GMOs in the food products in their homes and communities, label them, and switch to non-GMO foods instead."
John W. Roulac, CEO and founder of organic superfood brand Nutiva , said: "GMO Inside was created to catapult the energy from the fight for Prop 37 to the next level."
Sambazon: We’ll continue to fight for the right of Americans to know what is in our food
Ryan Black, CEO of Californian organic juices and supplements maker Sambazon , told FoodNavigator-USA: “It’s a major disappointment that Prop 37 didn’t pass, but the fight for food label transparency isn’t over."
He added: “The Yes on 37 campaign was unfortunately outspent by huge agri-business conglomerates and corporations that launched an onslaught of misleading advertising.
“However, it was inspiring to see so many industry leaders unite to stir grassroots support for food label transparency… We’ll continue to fight for the fundamental right of all Americans to know what is in our food.”
Click here to read more about the Prop 37 vote.