The food industry groups challenging Vermont’s statute requiring the labeling of food containing genetically modified organisms (GMOs) have filed a notice of appeal one week after a Vermont federal court denied their motion for an injunction to stop the law from taking effect on July 1, 2016. Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., notice of appeal filed May 6, 2015). While the motion for a preliminary injunction failed, the court allowed the case to proceed. Additional information about the injunction denial appears in Issue 563 of this Update. Issue 564
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In a May 5, 2015, Law360 analysis, Shook, Hardy & Bacon Partner Andy Carpenter chronicles a “meta” class action against Riceland Foods, Inc., a party to multidistrict litigation (MDL) stemming from the use of genetically modified organism (GMO) rice, which several thousand rice farmers alleged had tainted the U.S. rice supply. After Riceland obtained a verdict in a cross-claim against Bayer and settled its portion of the MDL, class-action counsel and plaintiffs filed a lawsuit against the company to obtain compensation for their work, from which they argued Riceland benefited when it received a judgment from Bayer. Carpenter details the reasoning of the district court and the later affirmation from the Eighth Circuit, discussing issues of jurisdiction and choice of law. Issue 564
A Vermont federal court has denied a preliminary injunction that would have prevented from taking effect the nation’s first state law requiring the labeling of food products manufactured with genetically modified organisms (GMOs). Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., order entered April 27, 2015). Several food industry groups challenged the statute’s provisions requiring GMO labeling and preventing foods with GMO ingredients from bearing a “natural” label. The court first examined the industry groups’ claim that the statute violates the dormant Commerce Clause of the U.S. Constitution. It agreed with the groups’ argument that the statute seems to prohibit the use of “natural” in signage and advertising “regardless of where or how those activities take place,” and accordingly refused to dismiss Vermont’s motion to dismiss that aspect of the Commerce Clause claim. The rest of the Commerce Clause claims, based on the argument that the statute would require…
A consumer has filed a purported class action against Natural & Tasty LLC alleging that the company misleads consumers by labeling its Goldbaum Quinoa Crisps® as “All Natural” and free of genetically modified organisms (GMOs) despite containing ingredients made from corn and soy because “almost all corn and soy grown in the United States are grown from seeds that have been genetically modified.” Slavinski v. Natural & Tasty LLC, No. 15-80451 (S.D. Fla., filed April 7, 2015). The complaint asserts that nearly all U.S. corn and soy are grown from GM seeds, “and as such, almost all corn and corn-based, as well as soy and soy-based ingredients in the United States are in fact unnatural, synthetic, artificial, and genetically modified ingredients.” The plaintiff points to several ingredients in the quinoa product as unnatural, including maltodextrin, whole grain corn flour, corn starch, and vegetable oil. While similar lawsuits have cited the reasonable…
The European Food Safety Authority (EFSA) has announced a June 17, 2015, workshop in Brussels, Belgium, to discuss supplementary guidance for the allergenicity assessment of genetically modified organisms (GMOs). According to the agency, the supplementary guidance aims to reflect technological and scientific advances as well as assessment methodologies developed since EFSA finalized the current guidance in 2011. The Working Group of EFSA’s GMO Panel requests feedback from member states, international partners, academia, non-governmental organizations and industry on the following topics: (i) non-IgEmediated immune adverse reactions to foods; (ii) in vitro digestibility tests for allergenicity assessment; and (iii) endogenous allergenicity. The June workshop will feature the work of 90 experts with a focus on molecular allergology, protein chemistry, plant science, clinical allergy, gastroenterology, food chemistry, and risk assessment. See EFSA News Release, April 14, 2015. Issue 562
Vermont Attorney General William Sorrell has reportedly adopted a final rule implementing the state’s new law requiring the labeling of foods produced partially or entirely with genetic engineering (GE). “We are pleased at the amount of public input we received during the rulemaking process – from industry and consumers – and are glad that, with the formal adoption of this rule, we are giving ample time for food manufacturers and retailers to prepare for the law to take effect in just over fourteen months,” Sorrell was quoted as saying. Among other things, Consumer Protection Rule 121 provides specific details about how the GE label must appear on processed food, exemptions from the labeling requirement, and enforcement and penalties. The rule takes effect on July 1, 2016. See Office of the Attorney General Press Release, April 20, 2015. Issue 562
A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
U.S. Sens. Barbara Boxer (D-Calif.), Richard Blumenthal (D-Conn.) and Rep. Peter DeFazio (D-Ore.) have reintroduced a proposed bill that would require the Food and Drug Administration to initiate labeling rules for foods that contain genetically engineered (GE) ingredients. “Some in the food and chemical industry say adding this very small piece of information to food labels will confuse people, will alarm people,” Boxer said. “Well, that argument is a familiar one. It’s been raised by almost every single industry when they want to avoid giving consumers basic facts about the product they’re buying.” The Genetically Engineered Food Right-to-Know Act reportedly has wide-ranging support from more than 120 public health, consumer and environmental organizations. The congressional lawmakers introduced similar legislation in the 113th Congress. See The Hill and Press Release of Congressman Peter DeFazio, February 12, 2015. Issue 555
The Atlantic’s February 11, 2015, profile of blogger Vani Hari—also known as “The Food Babe”—highlights the growing rift between the scientific community and consumer activists who position themselves as dietary crusaders, despite having “no training in human metabolism, toxicology, or environmental science.” Titled The Food Babe: Enemy of Chemicals, the article by Atlantic Senior Editor James Hamblin examines a new crop of writers and activists who have harnessed the Internet to campaign against genetically modified organisms (GMOs) and other food ingredients deemed “unnatural.” With a new book and TV show in the works, Hari has evidently mobilized what she calls “The Food Babe Army” to besiege companies that use allegedly suspect substances, in the process drawing the ire of “many scientists who believe her claims are inaccurate or even dangerous.” In particular, Hamblin speaks to scientists who have found themselves in Hari’s crosshairs for questioning her tactics or evidence. The…
Citing increased demand for food and beverage products that do not contain genetically modified organisms (GMOs) as ingredients, the March 2015 issue of Consumer Reports magazine features an article intended to help consumers “sift through the facts” about the purported health and environmental effects of GMOs. The column describes recent attempts by individual states to require GMO labeling, as well as voluntary “Non-GMO Project Verified” certification programs. It claims that “the vast majority of corn, soy, canola, and sugar beets grown in the U.S. are now genetically engineered” even though the Food and Drug Administration does not follow the joint safety assessment guidelines established by the World Health Organization and Food and Agriculture Organization. “In an interesting twist, some food companies that expressed strong opposition to such mandatory labeling are the same ones turning out new non-GMO products,” opines Consumer Reports. “Those in favor of mandatory labels—including Consumers Union, the…
