Pokemon GMO

** Update on the National Bioengineered Food Disclosure Standard Law **


closeup of a GMO UPC symbol on white

By a stroke of the pen, President Obama put to rest for all time (by “all time,” we mean a decade) the brouhaha over labeling foods containing GMO ingredients.  By signing the National Bioengineered Food Disclosure Standard law on July 29, 2016, the President and Congress proclaimed to the citizenry that GMO labeling is important — but not so important that the labels actually have to be seen.  How did we get to this point?  A brief history is in order.

When one of the editors of this blog watches Netflix with his English Bulldog, he is enjoying the companionship of a genetically modified organism (“GMO”).  Long before the first GMO food – the Flavr Savr tomato — hit grocery store shelves in 1994, humans were engineering crops and livestock the old fashioned way – selective breeding.  Modern GMOs, of course, differ from those derived from selective breeding.  They are developed on a molecular level – a specific gene from a donor organism that expresses a desirable trait is inserted into the genome of the target organism to give the latter that same trait.  While consumer organizations and environmental activists have sounded the tocsin (or toxin) over GMOs since the beginning of bio-engineering, the federal government – particularly the FDA – has not been alarmed.

Two years before Flavr Savr, the FDA published its “Statement of Policy:  Foods Derived from New Plant Varieties.”  In this document, the FDA reminded the public that a food additive must be approved prior to use unless it is “generally recognized as safe” (GRAS).  The FDA concluded that, while a plant gene inserted into another plant is an additive, generally that gene is GRAS.  “The agency is not aware of any information showing that foods derived by these new methods differ from other foods in any meaningful or uniform way, or that, as a class, foods developed from the new techniques present any different or greater safety concern than foods developed by traditional plant breeding.”  Based on that logic, the FDA’s regulations for plant GMOs are the same as those for traditional foods with the exception of a voluntary (“recommended”) consultation procedure with which developers of GMO-containing foods typically comply.  (Note that the USDA’s Animal and Plant Health Inspection Service plays a limited regulatory role with regard to GMOs that pose a risk to other plants or animals and the EPA regulates GMOs that are bio-engineered to produce a pesticide – for example, the infamous, but unblemished, Bt-corn.)

In the 1992 Policy, the FDA eschewed requiring food companies incorporating plant GMOs to label their products as such under the Federal Food, Drug, and Cosmetic Act because “the agency does not believe that the method of development of a new plaint variety (including recombinant DNA techniques) is normally material information within the meaning of 21 U.S.C. 321(n).”  The FDA has not deviated from this position in the past quarter decade.  The agency’s website has a page directed to consumers which rhetorically asks, “Are foods from GE plants safe to eat?”  The response is, “Yes.  Credible evidence has demonstrated that foods from the GE plant varieties marked to date are as safe as comparable, non-GE foods.”

The FDA’s refusal to mandate that food companies label their products containing GMOs does not mean that consumers who care about such things have been stymied.  In 1990, Congress enacted and George Herbert Walker Bush signed the Organic Foods Production Act, which required that the USDA develop national standards for organic products.  Ten years later, the USDA issued its final rule establishing the National Organic Program (NOP), which governs both fresh and processed food products, including crops and livestock.  The “USDA Organic” label means many things under the NOP — but one of them is no genetic engineering.  GMOs are prohibited in organic products as excluded methods of production.  7 CFR § 205.105.  Therefore, a consumer that doesn’t want to ingest a GMO need only look for the “USDA Organic” label.

The NOP was not enough for Vermont.  In 2014, Vermont enacted Act 120 – a manifesto against the federal government’s oversight of GMOs — that required labels on products containing genetically engineered ingredients.  “[F]ood offered for sale by a retailer after July 1, 2016 shall be labeled as produced entirely or in part from genetic engineering if it is a product:  (1) offered for retail sale in Vermont; and (2) entirely or partially produced with genetic engineering.”  Act 120, § 3043.  In addition, “a manufacturer of a food produced entirely or in part from genetic engineering shall not label the product on the package, in signage, or in advertising as ‘natural,’ ‘naturally made,’ ‘naturally grown,’ ‘all natural,’ or any words of similar import that would have a tendency to mislead a consumer.”  Id.

The food industry went into an uproar over Vermont’s law because – given the realities of interstate commerce – companies would have to change their labeling nationwide to satisfy the demands of Vermont.  While manufacturers have had to bend to the legislative will of California from time to time (“Made in the USA”/Prop 65), it’s quite another thing to answer to Vermont.

Due, in part, to persistent lobbying, Congress enacted the Bioengineered Food Disclosure Standard law just in time to pre-empt Vermont’s organic labeling law from going into effect.  The law requires that the USDA “establish a national mandatory bioengineered food disclosure standard with respect to any bioengineered food and any food that may be bioengineered” by July 2018.  Therefore, GMO labeling will be required nationwide sometime after 2018.  But because Congress clearly believes that this law is a solution in search of a problem, the statute has a unique labeling provision that “require[s] that the form of a food disclosure under this section be a text, symbol, or electronic or digital link . . . with the disclosure option to be selected by the food manufacturer.”  What does this mean?  Simply put, food companies will have the option of either a product label with a bar code accompanied by the words, “scan here for more food information” or a toll-free telephone number with “call for more food information.”  In short, an actual GMO disclosure on the label is not required.  Consumers who care will roam supermarket aisles – smart phones in front of their faces – scanning bar codes to find their non-GMO groceries like Pokemon Go zombies looking for Poke Balls.

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No Standing for NFL Superbowl Ticket Class Action Representatives

the beginning of a football match


** Third Circuit Affirms That Purported Class Representative Super Bowl Ticket Buyers Do Not Have Standing To Sue For NFL Ticket Practices That “Forced” Them to Buy Scalped Secondary Market Tickets **                                                                                                                                                                                                                                                        In 2014 a purported class action representatives purchased tickets to the 2014 Super Bowl held at the Meadowlands Stadium in New Jersey – at a price of $2,000.00 each (even though their face value was around $800.00).  Finkelman v. Nat’l Football League, No. 15-1435, 2016 WL 158507, at *1 (3d Cir. Jan. 14, 2016).  Plaintiff alleged that the NFL distributed 99% of tickets to teams, sponsors and the media and that the shortage of general public tickets caused the inflated price.  Id.  He further alleged that New Jersey’s Consumer Fraud Act (N.J. Stat. Ann § 56.8-35.1) in particular the provisions that make it unlawful to withhold more than 5% of tickets to an event from the general public – was violated by the NFL’s ticket allocation practices.  Id.  Plaintiff sued on the theory that this alleged violation of New Jersey law caused him to miss out on a face value ticket and thus forced him onto the inflated secondary market – with the difference between the two prices being his “injury.”  Id.  On the NFL’s motion to dismiss, however, the District Court agreed that there was no Article III standing.  Id.  The Third Circuit affirmed – outlining that Article III requires a fairly traceable injury – i.e. “but for” causation – and the court could not say that but for the NFL’s restrictions Plaintiff still would have been able to buy a face value ticket.  Indeed, the court said that “demand for Super Bowl tickets so far exceed

s supply that [Plaintiff’s] probability of obtaining a face-price ticket in a public sale would have been effectively nil regardless of the NFL’s ticketing practices.”  Id. at *8.  Further, the court disagreed that it could determine whether the high market price was caused by the NFL – “[t]o state the problem succinctly: we have no way of knowing whether the NFL’s withholding of tickets would have had the effect of increasing or decreasing prices on the secondary market . . . [w]e can only speculate—and speculation is not enough to sustain Article III standing.”  Id. at 10.  A second purported class representative did not buy a ticket to the Super Bowl – his allegation was that he was dissuaded from doing so because of the high resale price – and that lost opportunity was his “injury”.  Id. at *6.  This position on standing was treated with greater incredulity by the Third Circuit – the court concluding that Plaintiff’s lack of standing is not a hard call: “[i]f the Court were to credit [plaintiff’s] concept of injury, everyone who contemplated buying a Super Bowl ticket but decided against it would have standing to bring a claim under the Ticket Law. Article III is simply not that expansive.”  Id.  With no standing – to either purported class representative – the Third Circuit affirmed the dismissal.


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