Attorney on I-522: Maybe it is time for GMO labeling supporters to revise strategy and focus on clear legal standards for non-GMO labeling instead?

By Elaine WATSON

- Last updated on GMT

Attorney: "This shows exactly how hard this is going to be for groups advocating the affirmative declaration of GMOs on labels to succeed given that the resources on the other side are just enormous."
Attorney: "This shows exactly how hard this is going to be for groups advocating the affirmative declaration of GMOs on labels to succeed given that the resources on the other side are just enormous."

Related tags: Gmo labeling, Food

With early results from Washington State’s ballot on GMO labeling (I-522) suggesting voters may narrowly reject it (click here) legal experts predict that while this particular battle may be lost, the war is far from over.

The I-522 campaign was a “critical test case​”, Marc Ullman, partner at law firm Ullman, Shapiro & Ullman, told FoodNavigator-USA after initial returns suggested the NO vote was around 55% and the YES vote around 45% with an estimated 60% of votes counted (click here​).

In California, the final tally for GMO labeling initiative  Proposition 37  was 51.4% NO to 48.6% yes.

Marc Ullman: The resources on the ‘NO’ side are just enormous

Said Ullman: “I-522 didn’t have the obvious flaws of Prop 37 in terms of bounty hunter clauses and the possibility of retail liability and so on, so this shows exactly how hard this is going to be for groups advocating the affirmative declaration of GMOs on labels to succeed given that the resources on the other side are just enormous.

“Maybe it’s time to reassess and see if we can establish clear legal standards that permit non-GMO labeling?”

While there are already voluntary schemes in place for firms wishing to promote their non-GMO credentials such as the Non-GMO Project Verified scheme, a clear legal standard would provide conformity and consistency, he said.

“After all, if the aim is to get reliable information to consumers - rather than punishing companies that use GMOs, maybe this is the solution?”

Jonathan Emord: Battles will continue at a state and federal level

Meanwhile, Jonathan Emord, an attorney at Emord & Associates in Virginia, told us that the battle over GMO labeling is only just beginning.

Marc-Ullman-attorney
Marc Ullman: "Maybe it’s time to reassess and see if we can establish clear legal standards that permit non-GMO labeling."

Those advocating disclosure of GMO-containing ingredients on food labels never thought this fight would be easy or determined immediately. They are in this for the long haul. Their battles will continue on the state and federal level.”

He added: “A fundamental question remains for those who manufacture foods containing GMO ingredients:  If you are indeed correct that GMOs are entirely innocuous, why not proudly disclose on product labels the presence of GMOs and devote the tens of millions spent fighting against truthful disclosure to a campaign to educate the public? 

“If you bought for your child a bike that appeared in an ad to be red but the actual product received was blue; it might be the same bike; it might even have the same characteristics otherwise, but you wanted a red bike for your child; the seller deceived you. 

“Likewise here, manufacturers are hiding from the public information about food products that they, in very large numbers, want to know.”

Manufacturers are hiding from the public information about food products that they, in very large numbers, want to know

Jonathan-Emord3
Jonathan Emord: "Manufacturers are hiding from the public information about food products that they, in very large numbers, want to know."

Opponents of GMO labeling argue that it would set a dangerous precedent if laws are passed to label foods made using certain technologies, even if the end product does not differ in any meaningful way - or present any greater safety concerns - from foods developed by traditional plant breeding methods.

But they are missing the point, claimed Emord.

“It is up to the consumer, not the manufacturer, to determine the relative importance of distinguishing characteristics in the food market, even when those characteristics are deemed innocuous differences by the manufacturer.”

GMA: We will advocate for a federal solution that will protect consumers

At the Grocery Manufacturers Association (GMA), meanwhile, president and CEO Pam Bailey said the trade association would “continue to oppose individual state efforts to impose mandatory labeling of products made with GMO technology”.

But she added: "Because a 50-state patchwork of GMO labeling laws would be confusing and costly to consumers, GMA will advocate for a federal solution that will protect consumers by ensuring that the FDA, America's leading food safety authority, sets national standards for the safety and labeling of products made with GMO ingredients.

“Our country’s labeling laws have been and should continue to be based on health, safety and nutritional content.”

David Biderman: I-522 would have been subject to legal challenges

David Biderman Perkins Coie
David Biderman: I-522 would have been subject to a number of legal challenges had it passed

David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, told us that the defeat of I-522 was "positive for food companies and consumers"​, adding that "there would otherwise be conflicting labeling regulations and a patchwork quilt of compliance obligations".

He added: "In addition, it would be subject to a number of legal challenges both federal preemption and constitutional."

While those supporting labeling argue that defeat has only strengthened their resolve, the fact I-522 did not pass was likely to "reduce citizen initiatives" ​and " take some of the steam out of the legislative efforts, such as in Connecticut", predicted Biderman.

Meanwhile, federal labeling proposals introduced to Congress in April did "not appear to be gaining traction", ​he observed.

"All of this makes sense, as there is no need for such labeling, and that is consistent with FDA determination that there is no material difference between GMO and non GMO foods."

Marion-Nestle
Dr Marion Nestle: Sooner or later, one of these GMO labeling initiatives is going to pass

Dr Marion Nestle: Products should have been labeling from the outset, then we wouldn't be having this debate

Writing in her FoodPolitics blog​, ​Dr Marion Nestle, professor in the department of nutrition, food studies and public health at New York University, said: "Sooner or later, one of these is going to pass.

"At some point the industry is going to get tired of pouring this kind of money into these campaigns and will beg for labeling, which is what should have happened in the first place."

Click here​ for more reaction to the I-522 vote results.

Click here​ to keep track of the votes as they are counted. 

See below some tweets as initial results were released on November 6:

I522 tweets
More I522 tweets

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1 comment

Labeling GMOs

Posted by Jennifer O'Connor,

While I understand the frustration from the defeat of Washington's initiative, I still believe in fighting for GMO labeling. Joel Salatin says we should leave it to the States because the Federal Government is inept. I don't agree. The Federal Government has done extensive work to protect consumers and the environment. Joel also states that consumers need to step up. Well, that isn't happening any time soon. I agree they need to, but it is an educational process that takes time. Labeling pushes this issue into consumer's faces and, I believe, will help educate them to pay attention and get informed. ~United Against Factory Farming

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