In the absence of any legitimate science suggesting that GMOs are unsafe, the anti-GMO movement is seeking to promote “alternative facts” in a judicial setting and achieve, through deceptive trade practice and tort litigation, what they have failed to achieve in a scientific or regulatory setting.
The Hon. Richard G. Stearns recently dismissed a federal Massachusetts consumer class action, Lee v. Conagra Brands, Inc., 1:17-cv-11042 (D.Mass October 25, 2017), contending that Wesson vegetable oil was falsely labeled “100% natural” because the manufacturer extracted from genetically modified corn, soybean and rapeseed. In his decision, Judge Stearns opined that: “Because Wesson’s “100% natural” label conforms to FDA labeling policy, it cannot be unfair or deceptive as a matter of law. (For what it is worth, humans have been genetically altering organisms for our use for at least 30,000 years”).
The decision is important because the court determined, under the law and without equivocation, that food products can be “natural” despite the presence of genetically modified ingredients. In fact, the “100% natural” label met the criteria outlined in the FDA’s longstanding policy for use of the term “natural”. Thus, the court’s determination was based upon an analysis of FDA’s policy of not requiring special labeling of products containing GMOs. However, it may be reasonably inferred from reviewing the decision that defendants’ able counsel, McGuire Woods, succeeded in convincing the court that FDA’s GMO policy was premised upon sound scientific reasoning. The court’s opinion specifically referenced FDA’s Statement of Policy: Foods Derived from New Plant Varieties, 57 FR 22984-01 (May 29, 1992), which stated in pertinent part: “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 by the new techniques present any different or greater safety concern that foods developed by traditional plant breeding”.
The misguided belief underlying the lawsuit is that the bioengineering of plants somehow robs a product derived from such plants of its “natural” qualities. The FDA asserts that bioengineered foods need not be labeled any differently than non-bioengineered foods. Further, the FDA even cautions that to do so would be misleading is because it would suggest that non-bioengineered ingredients are superior to bioengineered ones. As such, Conagra argued that plaintiffs could not allege that they suffered a cognizable injury as required under the Massachusetts deceptive business practices statute.
It is well-established that the term “natural” is not restricted except in instances when the manufacturer adds color, synthetic substances, or flavor. The FDA has gone so far as to caution that manufacturers avoid statements suggesting that a food product or ingredient is safer or more nutritious merely because it is non-GMO.
Influential NGOs, such as the Bill & Melinda Gates Foundation, recognize that in places like Africa, GMOs reduce the amount of pesticides necessary to raise crops, combat malnutrition by fortifying food crops with vitamins and, in many areas, mitigate the increasing ravages of climate change. The anti-GMO movement takes its inspiration from Russian Federation President Vladimir Putin, whose government has placed severe limitations on the importation and cultivation of GMOs. Their hope that Russia will become the world’s beacon of organic non-GMO food is sadly misplaced.