Why voluntary GMO-free labelling can be a trap for companies
Much has been made of the fact that if the “DARK Act”, officially known as bill HR 1599, passes in the US, companies will still be able to voluntarily label their products as GMO-free. The implication is that the voluntary GMO-free labelling provision in the bill will enable consumers to choose whether they want to eat GMOs.
In fact, this is likely a trap in the DARK Act, because if a company labels a food as GMO-free and then a trace of GM is found in the food, the company could be sued. All that is needed is one successful action along these lines and companies will become reluctant to label as GMO-free. In this way the voluntary GMO-free labelling system could effectively be killed off.
In a forerunner of this trend, item 1 below reports that the US restaurant chain Chipotle is being sued for claiming its menu is GMO-free when some of its menu items allegedly do contain GMOs.
Below (item 2) is an excerpt from an article by Dr Judy Carman, which was published via the Environmental Defenders Office journal in Australia, describing what happened to a voluntarily-labelled GMO-free soy sausage company in New Zealand when a trace of GM soy was found in its product.
1. Chipotle sued in class action for claiming its menu is GMO free
2. How GM food is regulated in Australia and New Zealand: A story of standards, oil and sausages
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1. Chipotle sued in class action for claiming its menu is GMO free
Kaplan Fox & Kilsheimer LLP via PR Newswire, 31 Aug 2015
http://www.prnewswire.com/news-releases/chipotle-sued-in-class-action-for-claiming-its-menu-is-gmo-free-300135294.html
Kaplan Fox & Kilsheimer LLP (www.kaplanfox.com) filed a federal class action law suit against Chipotle Mexican Grill, Inc. ("Chipotle" or the "Company"), on behalf of all California consumers who purchased food products from Chipotle between April 27, 2015 and the present. The lawsuit alleges that Chipotle's marketing and advertising campaign that claims its menu does not contain genetically modified organisms (GMOs) is actually deceptive and misleading to consumers because many of Chipotle's menu items actually do contain GMOs.
Specifically, the complaint alleges that Chipotle has marketed its "Food With Integrity" brand to healthy-lifestyle and environmentally conscious consumers who are willing to pay premium prices for food that aligns with the consumers' ethical eating choices. The lawsuit alleges that beginning on April 27, 2015, Chipotle launched a multi-media publicity campaign that advertised and represented to consumers that Chipotle was "G-M-Over it" and that it only uses "non-GMO ingredients." The complaint alleges that Chipotle's claims are false and misleading to customers because Chipotle's menu was never free of GMOs at any time. Among other things, the complaint alleges that Chipotle serves meat products that come from animals which feed on GMOs, including soy and corn, that its sour cream and cheese ingredients come from dairy farms that feed animals with GMOs, and that Chipotle sells soft drinks that are made with corn-syrup—a GMO.
"Consumers today are very concerned about what they eat, and restaurants know that consumers place a premium on food that is considered to be healthy or natural," stated Laurence D. King, an attorney for the proposed class. "As a result, Chipotle's advertising in its stores should have accurately informed customers about the source and quality of its ingredients and should not mislead consumers that they are serving food without GMOs when in fact they are."
The complaint alleges violations of the California Consumer Legal Remedies Act, the California False Advertising Law, and the California Unfair Competition Law. The case, entitled Gallagher v. Chipotle Mexican Grill, Inc., No. 15-cv-03952, is currently pending in the United States District Court for the Northern District of California.
For more information about the case, to review a copy of the Complaint filed in this action, or for more information about Kaplan Fox, you may contact the attorneys that filed this lawsuit:
Laurence D. King
Linda M. Fong
Matthew B. George
Mario M. Choi
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, Suite 400
San Francisco, California 94104
Telephone: (415) 772-4700
Fax: 415-772-4707
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
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Frederic S. Fox
Donald R. Hall
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, New York 10022
(800) 290-1952
(212) 687-1980
Fax: (212) 687-7714
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
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SOURCE Kaplan Fox & Kilsheimer LLP
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2. How GM food is regulated in Australia and New Zealand: A story of standards, oil and sausages
Dr Judy Carman BSc (Hons) PhD MPH MPHAA
Director, Institute of Health and Environmental Research, Adelaide
Impact!, 2008;86:22-25
http://gmojudycarman.org/wp-content/uploads/2013/06/Legal-aspects-of-GM-labelling-Impact-2008-Published-word-version-without-graphics.pdf
[excerpts only]
Food Standards Australia New Zealand (FSANZ) regulates the food supply in ANZ [Australia New Zealand] and hence also regulates GM organisms for human consumption in ANZ.
GM food regulations are given in the Australia New Zealand Food Standards Code as Standard
1.5.2, Food Produced Using Gene Technology.[2]…
Negative claims, consumer choice and the story of the sausage
The Standard is silent on negative claims on a food label such as “GM free” or “non-GM”. FSANZ has instead stated that such claims are subject to provisions regarding false and misleading conduct under various legislation.19 The Australian Competition and Consumer Commission (ACCC) and legal advice to the Network of Concerned Farmers both state that GM-free-labelled food must not contain any trace of GM material whatsoever and that under the Trade Practices Act 1974 (C’th), the definition of “non” is similar to “no” or “free of.”[20] Therefore, “GM-free” and “non-GM” labels both mean that GM material must not be in the food and that, in fact, the product needs to have “no contact with novel DNA and/or protein during the production process.”[21]
An example of how this can work is given by Bean Supreme, a New Zealand (NZ) maker of
vegetarian, soy-based sausages. Only one of 12 of its products was found to test positive for GM material and then only at 0.0088 percent. Yet the NZ Food Safety Authority (NZFSA) referred the case to the Commerce Commission for prosecution. The company was subsequently found to be in breach of the Fair Trading Act 1986 because it had labelled its sausages as “non-GM”. Rather than face legal bills estimated at $63,000 the company pleaded guilty and was fined $4,250 plus costs.[22]
If the company had not put this claim on its products, it would not have been prosecuted, as it was easily able to demonstrate that it had worked hard to source non-GM ingredients and that the contamination was well below 1 percent. The role of FSANZ in this prosecution is unknown.
While the Standard was determined by FSANZ for both Australia and New Zealand, NZFSA enforces the Standard in New Zealand, but may do so in consultation with FSANZ.[23] As a result, even though surveys have repeatedly found that a high proportion of consumers do not want to eat GM food, consumers are being denied a choice to source clearly-labelled GM-free food, because food manufacturers are concerned about being fined if tiny amounts of contamination slip through. Meanwhile, uncaring or unscrupulous manufacturers are getting away with putting unlabelled GM ingredients in their food due to a lack of policing and enforcement. Because of this situation, the best way a consumer can choose not to eat GM foods is to use Greenpeace's The True Food Guide.[24]