Initiative 522 Defeated in Washington

Based on preliminary results from Tuesday’s election, it appears that Washington State’s hotly debated Initiative 522 (I-522) concerning the labeling of genetically-engineered foods has gone the way of California’s Proposition 37. Washington officials reported on Wednesday, November 6, 2013 that voters had rejected the measure, 54% to 46%. California’s similar labeling measure, Proposition 37, was rejected by California voters in November 2012.

County by county results show that certain counties in Washington including, King, Whatcom, and Jefferson, were largely in favor of passing I-522. However, the measure lost heavily in the southwest, central and eastern regions of the state.

If it had passed, I-522 would have required that any food offered for retail sale in Washington that was or may have been entirely or partly produced with genetic engineering to be labeled as follows:

  • In the case of a raw agricultural commodity, the package offered for retail sale must clearly and conspicuously display the words “genetically engineered” on the front of the package, or where such a commodity is not separately packaged or labeled, the label appearing on the retail store shelf or bin where such a commodity is displayed for sale must display the words “genetically engineered;”
  • In the case of any processed food, the front of the package of such food must clearly and conspicuously bear the words “partially produced with genetic engineering” or “may be partially produced with genetic engineering;” and
  • In the case of any seed or seed stock, the seed or seed stock container, sales receipt or any other reference to identification, ownership, or possession, must state clearly and conspicuously that the seed is “genetically engineered” or “produced with genetic engineering.”

In addition to the labeling requirements, I-522 would have also created a new private right of action for consumers to sue food companies alleging that they are not meeting the labeling standards set forth in the measure. Throughout the I-522 campaign, opponents argued that these so-called “bounty-hunter” lawsuits would impose significant defense costs and force settlements on food processors that may have inadvertently violated the measure’s requirements.

Despite I-522’s failure, the issue of GMO labeling appears to be here to stay. Earlier this year, Connecticut became the first state to enact legislation requiring the labeling of genetically engineered foods. According to Connecticut’s law, however, the labeling requirement will not take effect until four other states, including one state sharing a border with Connecticut, enact similar legislation. In addition, the requirements of the law will not take effect until a combination of Northeastern states with a cumulative population of over 20 million residents enacts similar legislation. Maine enacted similar legislation this summer, but the law also requires other states to enact GMO food labeling laws before the mandate takes effect.

Several other states currently have pending GMO labeling legislation that will be addressed during the next legislative session for those respective states. Stoel Rives attorneys will continue to track these state GMO labeling measure as developments occur. Check back here for updates.

Genetically Engineered Wheat Found in Oregon

Yesterday, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) issued a news release (PDF) announcing that a genetically engineered (GE) variety of wheat was found growing on an Oregon farm. APHIS was first notified of the issue by an Oregon State University (OSU) scientist who reported that initial tests of wheat samples from an Oregon farm indicated the possible presence of GE glyphosate-resistant wheat plants.

Here’s what you need to know:

Earlier in April 2013, an Oregon farmer noticed wheat plants that had germinated and developed in a place where they had not been intentionally planted, so-called “volunteer” plants. The farmer also found that these wheat plants were resistant to glyphosate, a systemic herbicide used to kill weeds known to compete with commercial crops. The farmer then sent the samples to OSU for analysis, which later tested positive for the glyphosate trait.

The OSU scientist contacted APHIS on May 3, 2013 to inform the agency of her findings. After immediately launching an investigation and conducting further sampling and testing, APHIS officials announced that the samples taken showed the presence of the same GE glyphosate-resistant wheat variety that Monsanto was authorized to field test in 16 states from 1998 to 2005. Specifically, over this seven year period, APHIS authorized over 100 field tests with this specific glyphosate-resistant wheat variety in Arizona, California, Colorado, Florida, Hawaii, Idaho, Illinois, Kansas, Minnesota, Montana, Nebraska, North Dakota, Oregon, South Dakota, Washington, and Wyoming.

This news has come as a surprise to many since there are no GE wheat varieties for sale or in commercial production in the U.S. The reason being that, unlike some other commercial crops such as GE sugar beets and corn that have been deregulated by APHIS, there are currently no GE wheat varieties that have obtained deregulated status from APHIS. In addition, to date, GE wheat varieties are not authorized for commercial sale or planting in any country.

However, despite the fact that GE wheat is not approved for planting in the U.S., government officials have confirmed that detection of this wheat variety does not pose a food safety concern. According to an investigation report (PDF) issued by APHIS in connection with the GE glyphosate-resistant wheat found in Oregon, the Food and Drug Administration (FDA) completed a voluntary consultation on the safety of food and feed derived from this GE glyphosate-resistant wheat variety in 2004. FDA ultimately determined that the GE glyphosate-resistant wheat variety is as safe as non-GE wheat currently on the market. FDA’s consultation summary, which includes the developer’s conclusion that “this wheat variety is not materially different in composition, safety, or any other relevant parameter from wheat now grown, marketed, and consumed,” can be found here.

Michael Firko, Acting Deputy Administrator for APHIS’ Biotechnology Regulatory Services, explained that the agency is taking the situation and the continuing investigation very seriously. APHIS is collaborating with state, industry, and trading partners to understand how the situation might have arisen and whether there are any more affected areas.

What is yet to be seen is how this event may influence Washington state voters come November. Initiative 522, also known as the “Mandatory Labeling of Genetically Engineered Food Measure,” is an initiative to the legislature on the ballot in Washington that will be decided in the general election on November 5, 2013. Similar to California’s Proposition 37 that failed with voters last year, Initiative 522 would require GMO labeling on raw or processed food offered for sale to consumers if the food is made from plants or animals produced through genetic engineering.

If Initiative 522 passes in November, this particular event would likely not trigger in liability for a producer or retailer’s failure to label the GE wheat. Initiative 522 specifically exempts from labeling any “raw agricultural commodity or food that has been grown, raised, produced, or derived without the knowing and intentional use of genetically engineered seed or food.” (emphasis added). However, there could be other legal ramifications if officials determine that the cause of the incident amounts to a violation of the Plant Protection Act (PPA). Under the PPA, if a violation is found, APHIS has the authority to seek penalties for such a violation including civil penalties up to $1,000,000 and potential criminal prosecution.

Initiative 522 Forwarded to the Washington State Legislature

After reviewing the voter petitions filed in support of Initiative 522 (I-522), the Washington Secretary of State’s Election Division announced last Friday that the measure received enough signatures and has been certified.  The official certification was signed by Secretary of State Kim Wyman.

I-522, also known as “The People’s Right to Know Genetically Engineered Food Act,” concerns the labeling of genetically engineered foods. Similar to Proposition 37 that was recently rejected by California, I-522 would require most raw agricultural commodities, processed foods, seeds and seed stocks, if produced through genetic engineering, to be labeled as such when offered for retail sale.

Now that initiative has been certified, it will be forwarded to the Legislature. Legislators have three options on an initiative sent their way: (1) pass it into law as is; (2) take no action, resulting in it going to the November ballot for a public vote; or (3) send it and a legislative alternative to the ballot and let voters decide which, if either, they support. Lawmakers commonly take the second approach and pass the initiative along to the public for a vote.

Final updates for I-522 can be seen here.

Another GMO Labeling Iniative on the Horizon, This Time in Washington

Last week on January 3, 2013, sponsors of Initiative 522 (I-522), a measure that would require the labeling of certain genetically engineered foods, filed their petitions with the Washington Secretary of State’s Office for review.

The filing of I-522 comes in the wake of Proposition 37, a similar initiative that was ultimately rejected by California voters in November 2012. If enacted, I-522 would require that any food offered for retail sale in Washington that is, or may have been, entirely or partly produced with genetic engineering to be labeled as follows:

  • In the case of a raw agricultural commodity, the package offered for retail sale must clearly and conspicuously display the words “genetically engineered” on the front of the package, or where such a commodity is not separately packaged or labeled, the label appearing on the retail store shelf or bin where such a commodity is displayed for sale must display the words “genetically engineered;”
  • In the case of any processed food, the front of the package of such food must clearly and conspicuously bear the words “partially produced with genetic engineering” or “may be partially produced with genetic engineering;” and
  • In the case of any seed or seed stock, the seed or seed stock container, sales receipt or any other reference to identification, ownership, or possession, must state clearly and conspicuously that the seed is “genetically engineered” or “produced with genetic engineering.”

Like Proposition 37, I-522 exempts certain food from the genetically engineered labeling requirements. Specifically, the following certified organic products, alcoholic beverages, medical foods, food sold for immediate consumption such as in a restaurant, products unintentionally produced with genetically engineered material, food made from animals fed or injected with genetically engineered material but not genetically engineered themselves, food processed with or containing only small amounts of genetically engineered ingredients, and any processed food that would be subject to the labeling requirement solely because one or more processing aids or enzymes were produced or derived with genetic engineering.

Now that the petitions have been filed, they must be reviewed to confirm that the sponsors of the initiative have obtained the necessary 241,153 valid signatures of Washington registered voters. Once the signatures are verified, the initiative will then be turned to the Washington State Legislature for further action:

  1. The Legislature can adopt the initiative as proposed, in which case it becomes law without a vote of the people;
  2. The Legislature can reject or refuse to act on the proposed initiative, in which case the initiative must be placed on the ballot at the next state general election; or
  3. The Legislature can approve an alternative to the proposed initiative, in which case both the original proposal and the Legislature's alternative must be placed on the ballot at the next state general election.

The Washington Legislature will convene on Monday, January 14, 2013 and will be in session until April 28, 2013. Stoel Rives attorneys will report on the status on I-522 as it moves through the Legislature.

In addition to Washington's I-522, a bill that would mandate the labeling of food and commercial feed containing "genetically modified material" has been pre-filed in the New Mexico State Senate. Senate Bill (SB) 18, sponsored by Sen. Peter Wirth (D-Santa Fe), seeks to amend the New Mexico Food Act to require a disclosure label on any product containing more than one percent of a genetically modified material.

Californians to Decide Tomorrow Whether Prop 37 Sinks or Swims

Tomorrow, California voters will be asked to decide the fate of Proposition 37, a voter initiative that would require certain raw and processed foods that have or may have been “entirely or partially produced with genetic engineering” to be labeled as such, if sold in California. Proposition 37 contains a number of exemptions from the labeling requirement. Specifically, if passed, the following foods would be not be required to comply with the mandatory labeling provisions of the initiative:

  • certified organic products;
  • alcoholic beverages;
  • medical foods;
  • food sold for immediate consumption, such as in a restaurants;
  • products unintentionally produced with genetically engineered material;
  • food made from animals fed or injected with genetically engineered material but not genetically engineered themselves; and
  • food processed with or containing only small amounts of genetically engineered ingredients.

Initially, Proposition 37 was supported by more than two-thirds of Californians who said they intended to vote on November 6, according to a poll from the California Business Roundtable and Pepperdine University’s School of Public Policy. On October 30, however, their latest poll indicated that support had dropped to approximately 39% and opposition had increased to almost 51 percent.

 

In addition to being the center of heated debate here in the U.S. over the past several months, the initiative has also received international attention. A recent article in The Guardian noted that “California’s ballot initiatives often take on huge importance. Often they are seen as laboratories for new ideas, that are adopted later in the rest of the country.”

 

Stoel Rives attorneys will be watching the outcome of the polls in California and will report on the results later this week.