Under the proposal, which will become law in July 2014 if Californians vote ‘yes’ this November, a food cannot be labeled as ‘natural’ - regardless of whether it contains GMOs - if it is a ‘processed food’, the definition of which includes ”any food produced from a raw agricultural commodity that has been subject to processing, such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation or milling”.
This would mean scores of products from salted almonds to apple sauce that have not been genetically engineered would no longer be allowed to call themselves ‘natural’, NPA chief executive John Shaw told NutraIngredients-USA, adding that the “road to hell is paved with good intentions”.
An open door for trial lawyers to sue our members wantonly
Moreover, if passed in November, this statute would provide an “open door for trial lawyers to sue our members wantonly andplace every supplier, manufacturer and retailer of food products at risk of unreasonable and frivolous litigation”, he claimed.
Prop 37 is designed to be enforced either by the state’s regulators or by private plaintiffs, who are not required to show any ‘unique or special individual injury or damages’.
NPA regulatory and scientific affairs vice president Dr Cara Welch said the statute - however well-intentioned - created a Prop 65-type environment whereby opportunistic plantiff’s lawyers lawyers would scan shelves and sue a raft of firms making natural claims without having to prove any injury to their clients.
While private plaintiffs will not be able to retain a share of any civil penalties (as is currently the case under Prop 65), Prop 37 would allow him or her to collect “reasonable attorney’s fees and all reasonable costs incurred in investigating and prosecuting the action as determined by the court”, she said.
Shaw added: “Our members have basically issued a warning to other states trying to develop such statutes why fundamentally flawed enforcement provisions that essentially become bounty hunter provisions for trial lawyers cannot be tolerated."
Natural seal definition still a work in progress
The NPA has yet to decide whether products featuring its ‘natural seal’ for foodstuffs should be allowed to contain genetically engineered ingredients, said Welch.
Given that 94% of all soy, 90%+ of sugar beet and canola and 88% of corn in the US is grown using GM seeds, securing non-GM alternatives is becoming increasingly challenging, she added.
“Huge parts of the meat-free market would have to stop using the word 'natural' on pack.”
Meanwhile, the practical challenges of having to label products sold in California differently to those supplied to other US states should not be underestimated, she said.
In a statement issued last night, the NPA said it “supports consumers’ right to know about the foods they purchase and appreciates the transparency Proposition 37 offers regarding genetically engineered foods“ but it “cannot support“ the enforcement provisions or the limited definition of ‘natural’.
Exemptions
At the heart of Prop 37 is a requirement for firms to disclose if a food or dietary supplement sold in California “is genetically engineered” (raw agricultural commodities) or “may have been entirely or partially produced with genetic engineering” (processed foods and supplements).
It excludes alcohol, medical foods, food served in restaurants, GE processing aids and enzymes, and meat from animals fed GE feed, and allows for deliberate addition of GE ingredients at levels of up to 0.5% (although this threshold will fall to zero in 2019).
It also establishes three exemptions:
1 - For foods certified organic.
2 - Where manufacturers can obtain sworn statements affirming the absence of GE processing from every supplier of every ingredient they use.
3 - If manufacturers undertake a sampling and testing program under the supervision of a third party ‘independent organization’ to determine that each of their products “has not been knowingly and intentionally produced from or commingled with genetically engineered seed or genetically engineered food”.
Business friendly?
Media director for the California Right To Know campaign Stacy Malkan told this publication last month that the wording of Prop 37 was designed to make it easier for companies to comply, requiring them to prove their intention to avoid GMOs, rather than requiring their products to pass tests proving that GMOs are not present.
However, Kathy Fairbank, spokesperson for No On Prop 37, said the proposition “is the exact opposite of business friendly, because it allows trial lawyers to file lawsuits against anyone on the food chain….Companies can either prove that they are right [that a product does not contain GMOs] or they can settle with the lawyers.”
Click here to find out more about the ‘vote no’ campaign.
Click here to find out more about the ‘vote yes’ campaign.
Click here to read the text of Proposition 37 (The California Right to Know Genetically Engineered Food Act).