Opinion

Alison Frankel

FDA punts again on GMO labeling, in boon to class action plaintiffs

By Alison Frankel
January 8, 2014

A couple months back, I told you that labeling of food containing genetically modified ingredients could be one of the rare issues in which private litigation has more impact than federal regulation on industry practices. That prospect has become more likely than ever, thanks to a letter that the Food and Drug Administration sent Monday to three federal judges overseeing consumer class action claims involving food with bio-engineered ingredients.

Consumers have filed more than 60 class actions across the country in which they claim to have been deceived by labels that described food containing genetically modified ingredients as “natural” or “all natural.” In at least three of those cases, as I discussed in a post last October, federal judges denied defense motions under the primary jurisdiction doctrine to stay the class actions until the Food and Drug Administration issues binding policy on the labeling of genetically modified ingredients. Those judges all said there was no point in holding up the class actions in the hope that the FDA would suddenly come up with a hard-and-fast answer to a question it’s actually been dodging since 1992.

Three other judges, however, did halt class actions in order to ask the FDA for guidance. They got it on Monday: The agency wrote to judges overseeing cases against Campbell Soup, General Mills and Gruma Corp (a maker of corn tortillas) to inform them that it would not be issuing an administrative decision on the labeling of bio-engineered foods in response to the judges’ requests. If the agency were to somehow amend its existing policy – which does not formally define the term “natural” but prohibits such labeling for food containing an unexpected artificial or synthetic ingredient – “we would likely embark on a public process, such as issuing a regulation or formal guidance, in order to determine whether to make such a change; we would not do so in the context of litigation between private parties.”

The letter offered no assurance that FDA has any intention of embarking on that public process, outlining all of the competing interests it would have to weigh to reach a new food labeling policy (including the involvement of additional federal agencies) and the resources such a quest would consume. And even if the FDA did undertake the exertions and expense of attempting to define “natural” food, the letter said, “There is no assurance that we would revoke, amend, or add to the current policy, or develop any policy at all.”

In other words, makers of food that contains bio-engineered ingredients can’t count on the FDA to save them from deceptive labeling class actions. They can’t even hope to delay the class actions to wait for a formal FDA definition of “natural” food, since the agency’s letter clearly indicates there’s not even a timetable to establish a definitive policy. Even worse, according to Glenn Lammi, chief counsel for legal studies at the Washington Legal Foundation and a tracker of food labeling litigation, the FDA’s position newly-announced will undermine defense arguments that state-law consumer claims are preempted by federal authority over food labels.

Lammi told me the result of the FDA’s refusal to issue an administrative decision will be that individual federal judges – “probably the least equipped of all lawmakers,” he said – will have to make their own determinations about labeling of genetically modified foods. The outcome will probably be a confusing patchwork of judicial decisions – and more litigation over bio-engineered ingredients.

Lammi noted, as the FDA did in its letter to the federal judges Monday, that the Grocery Manufacturers Association has announced its intention to file a citizens petition formally asking the agency to issue a regulatory authorization to label genetically modified food ingredients as “natural.” He said he is hoping that the FDA launches the process. “It will be messy, loud, and long, but that’s how it’s supposed to be,” Lammi said. But there’s no guarantee, he added, that the agency will undertake a rule-making inquiry in response to the GMA, any more than it did in response to the federal judges.

In the meantime, Lammi said, food companies have already begun to respond to litigation exposure by removing the word “natural” from labels of products with bio-engineered ingredients. That’s what I mean by regulation by litigation: Class action exposure has wrought change in a regulatory vacuum.

Of course, it’s one thing for consumers to force food companies to shed “natural” labels for food containing bio-engineered ingredients. It’s another to force them to disclose such ingredients in the labeling. I bet that’s the next frontier for litigation over genetically modified food.

For more of my posts, please go to WestlawNext Practitioner Insights

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