retail news in context, analysis with attitude

by Kevin Coupe

Courthouse News Service reports that a US District Court Judge has ruled that at least for the moment, it will not make a decision on whether products containing genetically modified organisms can be labeled as "natural," and has said that the matter should be decided by the US Food and Drug Administration (FDA), which has jurisdiction over such matters.

The ruling essentially puts on hold for six months a proposed class action suit against Gruma Corp., which makes corn tortillas and other products that contain GMOs and calls them "all natural" on the label.

"The FDA has regulatory authority over food labeling," the opinion states. "There are no FDA rules requiring that products containing [genetically-modified organisms] or bioengineered ingredients be labeled as such. The FDA has issued nonbinding industry guidance indicating that it 'is not aware of any data or other information that would form a basis for concluding that the fact that a food or its ingredients was produced using bioengineering is a material fact that must be disclosed.'" However, the ruling also says that there is a "gaping hole" in the regulations that should be addressed by the FDA regarding claims of "natural" by products containing GMOs.

In other words, the judge punted. (Not that there's anything wrong with that...)

Now, I'm no lawyer. But a lawyer friend of mine addressed the issue this way:

"The court dismissed the case based on a doctrine called 'primary jurisdiction.'  In essence, the court ruled that this is not a question that courts and juries should decide, but, rather, that it should be decided by FDA.

"Here's the kicker.  The Court referred the case to the FDA for decision.  In the past, FDA has chosen not to address the issue and it may decline to address the issue again.  On the other hand, a referral from a federal judge is no small thing, and FDA may decide to resolve the issue administratively.  If they do, it would be a rather big deal.

"Now, the FDA would have a number of options.  It could, for example, rule that the presence of GMOs in foods must be disclosed on the label.  On the other hand, they could rule that the presence of GMOs needn't be disclosed, but that food containing GMOs cannot be labeled "natural."  They have other options as well."

To my mind, the notion that products containing GMOs could be called "all natural" seems patently ridiculous. But I understand that there are varying opinions on this one ... and that the arguments on both sides are pretty passionate.

In the end, the smart move should be to label the damned things. Just say that they're there, let companies explain why, and let consumers make their decisions. I suspect the GMO genie won't be put back in the bottle anytime soon, but transparency and labeling might resolve some of these issues.
KC's View: