Does Prop 37 Bar "Natural" Labeling of Non-GM Foods?

By Josh Long, Legal and Regulatory Editor

CALIFORNIA The first sentence of California's Proposition 37 sums up its essence: "California consumers have the right to know whether the foods they purchase were produced using genetic engineering".

But San Francisco lawyer Michael Steel contends one of the provisions in the labeling initiative would impact foods that aren't even genetically modified. Section 110809.1, forbidding the labeling of certain defined foods as "natural" or bearing similar words, applies to "processed" foods.

The question is whether processed foods that are not genetically modified also are subject to the labeling prohibition titled "Misbranding of Genetically Engineered Foods as 'Natural'". As you would expect, lawyers don't agree on the answer.

Processed foods, as that term is defined in Prop 37, omits any reference to genetic modification or engineering, said Steel, a partner with Morrison & Foerster, LLP, an international law firm. The initiative defines "processed food" as "any food other than a raw agricultural commodity and 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."

That sweeping definition includes most foods, said Steel, not just processed foods that have been genetically engineered. For instance, if almonds are grown on a tree, roasted and offered for sale, the food couldn't be labeled "natural", "naturally made", "naturally grown" or "all natural". "The same would be true for a dried fruit" like dried bananas or prunes, he said.

The Natural Products Association (NPA) reaches the same conclusion.

"We are ... concerned that any processed food, even non-genetically engineered processed foods, cannot be labelled as natural," said NPA's Cara Welch, senior vice president, scientific and regulatory affairs. "NPA does not want the word natural to be removed from non-genetically engineered foods and we believe this provision can do that."

Stacy Malkan of the Yes on 37 campaign asserts such an interpretation "has no merit."

"The initiative is clear in both its language and intent that Prop 37 requires genetically engineered foods to be labeled and prohibits genetically engineered foods, not other foods, from being marketed as natural," wrote Malkan in an email.

"This storyline about supposed confusion is a red herring created by special interests that don't want us to know if our food is genetically engineered," she said.

In a memorandum last month, a Washington, D.C.-based lawyer Joe Sandler declared "there is simply not even a remote possibility that the new law would ever be interpreted or applied to bar the labeling as 'natural' of processed foods that do not have any genetically engineered ingredients."

Sandler of the law firm Sandler Reiff Young & Lamb wrote the plain language of Proposition 37 and purpose of the initiative support his conclusion. For instance, he cites Prop 37's Statement of Purpose, which declares that the purpose of this measure is to create and enforce the fundamental right of the people of California to be fully informed about whether the food they purchase and eat is genetically engineered and not misbranded as natural so that they can choose for themselves whether to purchase and eat such foods." 

In a phone interview Wednesday, Sandler said an interpretation that found non genetically modified processed foods were subject to labeling would "frustrate the intent as expressed in the findings" of the initiative.

"In this case, the language of the initiative and the findings, what the voters are actually voting on ... makes clear this is to prevent genetically modified foods from being labeled or marketed as natural," said Sandler, who is a legal advisor to the Yes on 37 campaign.

He also maintains it's implicit that processed food that isn't genetically modified would be exempt from the labeling requirements. Section 110809.2 specifies certain exemptions from the labeling requirements such as food derived from an animal that has not been genetically engineered regardless of whether the animal has been fed with a genetically engineered food or any drug that has been produced through means of genetic engineering. Food that is not genetically engineered is exempted, he concluded.  

A Sacramento, Calif. judge, however, disagreed, concluding over the summer the measure could prohibit processed foods without genetic engineering from being marketed or sold as "natural", according to the No on 37 campaign. Supporters of the measure argued that the natural labeling language only applied to processed foods with genetically engineered ingredients.

Actually, Judge Michael P. Kenny of the Superior Court of California didn't make a legal interpretation as to how Section 110809.1 should be interpreted. Although the judge said in an order the interpretation by the California Attorney General (that the section pertains to processed foods that aren't even genetically modified) was a "possible" one, he didn't hold whether or not it was correct, according to the order and a transcript of an Aug. 9 hearing we obtained.

The California Legislative Analyst's Office (LAO), a non-partisan entity of the California Legislature, has opined it's possible the courts would interpret the natural labeling prohibition as pertaining "to some processed foods regardless of whether they are genetically engineered," according to the official title and summary prepared by the California Attorney General. (To muddy the waters even further, Judge Kenny actually changed the word "all" to "some" in connection with LAO's analysis above because he found "use of the word 'all' in describing processed food that may be subject to the natural food labeling restrictions is false and/or misleading and should be changed to 'some'").

Should voters pass Prop 37 on Nov. 6, California courts might have to decide whose interpretation of the natural labeling prohibition is correct.

Editor's note: For the Natural Product Association's perspective on how Prop 37 could affect the supplement business, click here.