In our February 8 post, Courts Not a “Natural” at Regulating Food Ads and Labels, I argued that legislatures, or regulatory bodies acting as an “agents” of the legislature, are far better suited to define politicized, complex terms like “natural” than are judges and juries through class action litigation. The context of this argument: class action lawsuits against Frito-Lay claiming that consumers relied upon the misleading use of “all-natural” on the product packages. The term is misleading, the suit asserts, because flour and oils used to make the snacks had their origins in genetically modified seeds.
The good people of Vermont, it seems, through their legislature, have taken this message to heart (though I’m sure they were well along in the drafting process before The Legal Pulse put in its two cents). The state legislature is currently considering a proposal which would require food producers to disclose on the food label the existence of a genetically modified organism (GMO) in any ingredient in the product. More germane to our February 8 post, the bill also would prohibit food producers from dubbing any product created with GMOs as “natural.”
WLF has spoken out against mandatory GMO labeling, federal and state, previously in The Legal Pulse, so I won’t opine on that here. Some may find it encouraging that Vermont has stepped forward and is trying to define “natural” as it applies to food products sold in that state. Perhaps, they might argue, Vermont will start a trend, and other states will adopt their approach or utilize a different definition, perhaps one that, like the term “organic” as the federal Agriculture Department defines it, permits some trace amounts of GMOs in the food.
Vermont’s move, however, is not a step in the right direction. Mass produced prepared food products are sold in a national market in the U.S. That is why Congress created a uniform food labeling scheme in the Nutrition Labeling and Education Act. That is why, in addition to their lack of scientific expertise, having scores of judges and juries in different jurisdictions create different standards for “natural” via litigation is unacceptable. Similarly, if 50 states adopt 50 (or even 15) different definitions for “natural,” a perilously Balkanized regulatory regime will tie food companies in knots.
Food companies selling in multiple states would have to devise multiple labels, pay for all that different labeling, and be extra vigilant to make sure that the packages go to the right state. It might even require wholesale redesigns of some products, and abandonment of others, since ensuring that no GMOs exist can in some instances be scientifically impossible.
This is something Vermont policymakers should consider. In the event that they don’t, and go forward with passing and having the governor sign the bill, things will certainly get that much more interesting in the normally sedate world of food labeling.