Pollinating Monsanto's IP: A Trifecta (continued)

IP ManagementEngineered for Life: Fresh Squeezed or Concentrate?

Bill H.722, which would mandate labeling genetically-modified organisms (GMOs) in Vermont, may well be squashed due to Monsanto threatening to sue the state if legislators pass it. The governor and legislature have said that while they favor the bill, it wouldn’t hold up to federal legal scrutiny, and they don’t want to spend taxpayer money on legal challenges.


If the bill is killed, it will suffer the same fate as a similar bill proposed in Connecticut. Raising the ante, the Organic Consumers Association has countered by launching a legal defense fund for any state Monsanto threatens to sue over mandatory GMO-labeling laws which they see as intruding on technology-marketing efforts.


Activists in California frustrated by what they perceive as Monsanto’s swaying influence with politicians and regulatory officials are attempting to bypass the CA legislature by collecting 850,000 signatures to have a Citizens’ Initiative placed on the ballot in November 2012. Known as the California Right to Know Act, it will force mandatory labeling of GMOs, and ban the practice of labeling GMO-containing food as “natural” – a serious blow to Monsanto’s IP-management activities and IP strategy if it passes.


A coalition of about 400 businesses and organizations has filed a legal petition with the US Food and Drug Administration (FDA) to require mandatory labeling of GMOs, while the Just Label It campaign has delivered over one million comments in support of GMO labeling to the FDA – a public groundswell in proponents to transparent technology marketing.


Genetically-modified (GM) foods have been a worldwide concern for some time. While the US is an exception, about 50 countries have GMO-labeling laws that were ratified in part based on peer-reviewed studies suggesting that GMO crops and foods may pose a health risk to humans, animals, and the ecosystem. Europeans have most staunchly opposed GM foods, implementing strict labeling requirements for any GM foods sold in their stores. The European Commission has proposed mandatory labeling for GM foods that contain even a single ingredient with one percent GM material.


In the US, about 75% of soy and corn that’s not organic contains GMOs (even for products with the misleading label of “natural,” due to the lack of definition for the term by the FDA as highlighted below).


The pros and cons of mandatory labeling of GM foods are numerous and multipronged. A key point in favor of GMO labeling is to provide consumers with a choice in consuming or avoiding products made with GM ingredients – the transparent technology-marketing rationale. The main argument against GMO labeling is the allegation that no health risks of GM foods are known, while GMO labeling would convey to consumers such risks, thereby harming companies’ IP-management efforts.


Greg Conko argues that mandatory GMO labeling is unconstitutional. Referring to the case of International Dairy Foods Assoc. v. Amestoy, he notes that:


… the U.S. Second Circuit Court of Appeals held that a Vermont statute requiring dairy products from cows given the biotech growth hormone rbST violated the First Amendment, and that food labeling cannot be mandated simply because some people would like to have the information. The Vermont law was unconstitutional because it forced producers to make involuntary statements contrary to their views even though there was no substantial governmental interest in requiring the label statement.


Potentially serving as a precedent in the California ballot initiative, the court in the International Dairy Foods case stated:


We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product.… Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.


Returning to the proposed Connecticut GMO legislation, Tara Cook-Littman of Right to Know CT had the following to say about constitutionality arguments.


The constitutional argument is absurd, and everyone knows it. As long as Connecticut lawmakers had a legitimate state interest that was reasonable related to the labeling of products produced from the process of genetic engineering, the GMO labeling bill would be considered constitutional by any court of law. It appears that the biotech industry’s influence was in place all along, waiting for this tactic to be deployed at the last minute, with no time to argue before the vote.


Conko also cites a class-action suit before the U.S. District Court for the Central District of California against ConAgra Foods premised on the allegation that ConAgra misleadingly advertised Wesson cooking oil as “100% Natural,” even though it is made with genetically-engineered canola, in allegedly-deceptive technology marketing. The court in Briseno v. ConAgra Foods, Inc. addressed a claim that the action should be preempted by Section 403A of the Food, Drug and Cosmetic Act, concluding that, because the FDA has never defined what constitutes “natural” or “all natural,” a definition of those terms under California law could not conflict with federal standards, so the suit was not preempted. 


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