Mark Goodman, a partner at the law firm Hogan Lovells LLP who practices in San Francisco and represents food companies, said the definition of natural that appeared in California’s defeated Prop 37 GMO labeling initiative muddied the water surrounding the issue.
“There is very little science as to whether something that is genetically modified is different in quality or nutritional value to something that is not modified,” Goodman told FoodNavigator-USA.
So, with little scientific agreement on the health and nutritional impacts, can a plant be genetically modified, grown in a field and have the ingredients that result from that crop still be included in a food that falls under a ‘natural’ label? While the anti-GMO forces have made up their minds on this issue, there is nothing in the law that sets a precedent, Goodman said.
“Right now, the answer to that is that there is no definition of ‘natural’ or ‘all natural.’ It’s basically just a court deciding what ‘natural’ is (in a given case). There is no legal definition of natural that any court has decided on that sets a precendent,” Goodman said.
The earliest example of a genetically modified crop, the Flavr Savr tomato from Davis, CA company Calgene, was reported to have an inserted gene taken from a flounder species to retard the development of an enzyme in the plant’s tissues to make the tomato remain firm longer after it was picked. After unfavorable media reports, the tomato bombed in the marketplace. Belinda Martineau, a plant geneticist at the University of California at Davis who was involved in the variety’s development, disputes that the tomato contained a flounder gene, attributing that idea to a (subsequently corrected) mistake that appeared in The New York Times. But even if the tomato was not an example of mixing animal and plant kingdoms, it begs the question of how far you can stray from the base plant before you’ve got something that is no longer natural. The modern grapefruit, for example, is a hybrid first bred in the 18th Century and developed further thereafter featuring a number of patented varieties. Is that ‘natural?’
“You’ve got a sliding scale of what a consumer would reasonably expect to be in a tomato and what wouldn’t. Genetic modification of plants goes way back. At this point, yes, something can be labeled as ‘natural’ and contain genetically modified organisms,” he said.
Focus on ingredients
But Goodman said his firm is advising its clients that they can’t hold back the tide. It’s imperative, now more than ever, to have a handle on their supply chains so that they know everything about all of their ingredients.
“Forget the problem of whether something is natural, and focus on the ingredients,” Goodman says he tells his clients. “We are definitely telling them, and they know it already, that it is an issue. It’s not going to go away, as most states come up with their own GMO labeling laws.
“My own personal view that that is potentially problematic. I think that is a recipe for disaster for companies trying to do business across borders. We think the best solution is a federally mandated GMO labeling law. Given the way things are set up politically right now that seems unlikely,” he said.