U.S. Courts Start to Inject Some Legal DNA into GMO

August 5, 2015

By: Michael Singer
Edited by: Sigalle Barness

Is genetically engineered (GE) food here to stay, or will state laws, court decisions and public pressure consign it to the recycling bin of history?

With a recent Consumer Reports survey revealing that 92% of Americans want food products containing genetically modified organisms (GMO) labeled as such, you’d think GE food was a recent and insidious invader in the food chain, not unlike the pests GE foods are designed to avoid. But, as food law attorney Lauren Handel (Foscolo & Handel PC) explains, GE foods have been with us commercially for nearly two decades, and currently up to 80% of processed food in the U.S. contains some GE product. Many governments, along with a large body of scientists, have concluded that GE foods are safe. The Food and Drug Administration finds that they are not different “from other foods in any meaningful way.” Still, as Handel points out, there are “some” studies that have shown “negative” effects in GE foods, although there hasn’t been enough time to do long-term, life-cycle studies of the potential toxicity.

The vacuum between the studies showing safety and those indicating “not so much” is filled by a natural fear of the unknown. In addition to safety issues, there’s the nature of nature itself:

(a) GMO pollen can blow onto non-GMO fields just like natural pollen can - transforming non-GMO crops into GMO crops; and

(b) GE pesticides produced by some plants result in resistant superweeds.

Currently, the anti-GMO crowd is clamoring for conspicuous labeling laws, bans on use of terms like “natural” for GMO food products, and encouraging voluntary company actions, like Chipotle’s, banning GMO products, as well as certification by the Non-GMO Project.  The State of Vermont has jumped into the fray with a first-of-its-kind law (set to take effect in July 2016) requiring label disclosure of products containing greater than 0.9% GMO ingredients. Vermont’s law is currently wending its way through federal court, facing a variety of constitutional challenges by industries claiming First Amendment and Commerce Clause violations. See Grocery Manufacturers Association v. Sorrell.

Given this backdrop, where do agribusinesses, grocery stores, restaurants, beverage manufacturers, and their lawyers stand? Lawline invited Handel to clear the murk from the GMO landscape, and her presentation, Regulation and Labeling of Genetically Modified Foods, is worth your attention for a number of reasons, not the least of which is learning exactly what a GMO is.

tomatoe seedlings

Humans have been tinkering with plant DNA since the dawn of agriculture, by mixing, matching, cross breeding and selecting seeds from successful plants—Darwinism with a helping hand. While this activity plays with nature, it doesn’t produce GMO. GMO involves “the use of biotech to more precisely alter a plant’s genetics by selecting a particular gene from one organism and implanting it into another organism.” GE enables “any gene from any organism to be implanted into another organism … and allows engineers to insert specific genes without carrying all the plant DNA over to the second plant, as you would in crossbreeding.” In human terms, if your family tree has only brown-eyed members and you want a blue-eyed child, you could (A) go find a blue-eyed mate to increase your chances (crossbreeding) or (B) have a gene for blue eyes implanted directly into an embryo (GE).

Handel also offers an in-depth treatment of the Vermont law. The case is pivotal because, all things being equal, U.S.-based food producers prefer a uniform, federal standard on GMO, so they would prefer that courts strike state laws. If Vermont is an indication, they may not be able to get what they want.

The district court’s ruling basically boils down to this:

  • federal law preempts Vermont’s requirement that meat and poultry products be labeled for GE purposes.
  • properly tailored state GE labeling requirements are okay for foods other than meat and poultry under the First Amendment and Commerce Clause if not otherwise preempted by federal law.
  • a State’s ban on terms like “natural” on GMO food packaging is not okay under the Commerce Clause if the law has the effect (because it applies to Internet ads) of regulating such advertising everywhere.

The Vermont case notwithstanding, it appears that mandated GMO disclosure is inevitable. As Handel notes, there’s “an increasing demand for knowing how food is produced, and GMO labeling is a part of that trend.”
The bottom line: Handel suggests that if mandatory labeling becomes the norm, manufacturers may try to phase out GMO ingredients. Not quite a prediction, but interesting given the volume of GE food produced in the U.S.

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Author Bio

Written by Sigalle Barness

Sigalle Barness is the Vice President of Content and a member of Lawline.com’s Executive Team. Sigalle provides business strategy and leadership to the company and directly manages Lawline’s accreditation, programming and production operations. Sigalle also analyzes market trends and applies insights to develop and execute written and video content including online educational programming, email marketing, social media campaigns, press releases, blog articles and large scale live events. Sigalle graduated summa cum laude from Rutgers University and holds a B.A. in English. She received her J.D. in 2010 from Benjamin N. Cardozo School of Law in New York, NY. Sigalle is admitted to practice in both New York and New Jersey. She is also an active member of the Association for Continuing Legal Education (ACLEA), and is the former Chair of ACLEA’s Programming Special Interest Group (2013 – 2015) and National Provider Special Interest Group (2015 - 2017). Before joining Lawline in March 2012, Sigalle litigated civil claims in areas such as landlord tenant, breach of contract and tax lien and mortgage foreclosures actions. She also handled transactional matters such as drafting residential and commercial leases, demand letters, and client conflict waivers. Sigalle is an avid lover of music, video games, blogging, asking questions and all things food. She is also fluent in Hebrew and enjoys writing fiction, traveling and scuba diving.

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