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.

California's Proposition 37 and WTO Agreements

Recently, I attended the annual American Agricultural Law Association (AALA) Conference in Nashville, TN. A topic on many of the attendees’ minds was California’s Proposition 37 or “The California Right to Know Genetically Engineered Food Act.” A previous discussion of Proposition 37 can be found here.

If passed in November, the voter initiative 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. In addition, Subsection 110809.1 provides that if a food is “genetically engineered” or “processed” as those terms are defined under the initiative, the food’s label may not, in California, state or imply that the food is “natural,” “naturally made,” “naturally grown,” “all natural,” or use any words of similar import that might mislead any consumer.

As election day nears, the debate over Proposition 37 has reached fever pitch. Proponents of the initiative urge that consumers are entitled to make informed choices about the foods they purchase. On the other hand, opponents argue that the initiative would be burdensome on both producers and retailers and would result in excessive litigation.

While attending the AALA Conference, I had the pleasure of chatting with Drew Kershen, the Earl Sneed Centennial Professor of Law (Emeritus) at the University of Oklahoma College of Law. Professor Kershen recently published an article on a unique and important issue involving California’s Proposition 37. The article addresses whether Proposition 37 complies with World Trade Organization (WTO) Agreements and discusses the compatibility between the two.

In analyzing the relationship between Proposition 37 and WTO Agreements, more specifically the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) and the Agreement on Technical Barriers to Trade (the TBT Agreement), Professor Kershen concludes that the initiative “raises significant and difficult questions about whether it complies with the SPS Agreement or the TBT Agreement.” As a result, he notes that Proposition 37 can be challenged by member states to the WTO Agreements as well as the United States as a violation of WTO Agreements. However, it remains unclear as to whether those parties will act against Proposition 37.

Professor Kershen’s essay is a reduced version of a previously published article: “Would State-Mandate Labels for Biotech Foods Violate World Trade Agreements?,” Critical Legal Issues WORKING PAPER No. 181 (Wash. Lgl. Fndt., Sept. 2012), available at www.wlf.org/.

Stoel Rives attorneys continue to track the progress of Proposition 37 in California. Stay tuned for more updates as election day approaches.

Is It Really A Food-Borne Illness?

At a recent presentation, Dr. Alan Melnick, a public health officer in both Oregon and Washington, provided a useful list of alternative causes of symptoms to consider when someone claims a food-borne illness. Other causes of symptoms that might be confused for food-borne illness include (but may not be limited to):

Another practical piece of advice offered by Dr. Melnick: When assessing a food-borne illness claim, determine whether the incubation period is compatible with the illness. Incubation periods (along with other useful information) were provided by Dr. Melnick (relying upon the CDC) as follows:

Pathogen

Incubation

Symptoms

Duration

Source

Bacillus cereus

1-6 hours (vomiting); 6-24 hours (diarrhea)

Nausea and vomiting or colic and diarrhea 24 hours (short form); 24-48 hours (long form) Soil organism found in raw, dry and processed foods, e.d. rice
Campylobacter 2-10 days; usually 2-5 days Diarrhea, cramps, fever and vomiting; diarrhea may be bloody 2-10 days Raw and undercooked poultry, unpasteurized milk, water
Clostridium botulinum (botulism) 2 hours to 8 days; usually 12-48 hours Vomiting, diarrhea, blurred vision, double vision, difficulty swallowing, descending muscle weakness Variable (days to months) Home-canned food, improperly canned commercial foods
Clostridium perfringens 6-24 hours Cramps, diarrhea 24-48 hours Meats, poultry, gravy; foods kept warm
Enterro-hemorrhagic E. coli, including E. coli O157:H7 and other Shiga toxin-producing E. coli (STEC) 1-10 days; usually 3-4 days Diarrhea, frequently bloody; abdominal cramps (often severe); little or no fever; 5-10% develop Hemolytic-uremic syndrome (HUS) and average of 7 days after onset, when diarrhea is improving (more common in children, elderly and immune-compromised) 5-10 days Ground beef, unpasteurized milk and juice, raw fruits and vegetables, contaminated water, sprouts, person to person
Listeria 9-48 hours for GI symptoms; 2-6 weeks for invasive disease Fever, muscle aches and nausea or diarrhea; pregnant women may have flu-like illness and stillbirth; elderly, immune-compromised and infants infected from mother can get sepsis and meningitis Variable Fresh soft cheeses, unpasteurized or inadequately pasteurized milk, ready-to eat deli meats and hot dogs
Salmonella 6 hours to 10 days; usually 5-48 hours Nausea, diarrhea, cramps, fever 4-7 days Poultry, eggs, meat, unpasteurized milk or juice, raw fruits and vegetables (e.g., sprouts), person to person
Shigella 12 hours to 6 days; usually 2-4 days Abdominal cramps, fever and diarrhea; stool may contain blood and mucus 4-7 days Contaminated food or water, raw foods touched by food workers, raw vegetables, egg salads, person to person
Staph (toxin) 30 minutes to 8 hours; usually 2-4 hours Nausea, cramps, vomiting, diarrhea  24-48 hours Custards, cream fillings, potato or egg salad, sliced meats
Vibrio cholerae 1-5 days Profuse watery diarrhea and vomiting, severe dehydration 3-7 days Contaminated water and shellfish, street vended food 
Vibrio parahaemolyticus 4-30 hours Watery diarrhea, abdominal cramps, nausea, vomiting  2-5 days Undercooked or raw seafood (fish and shellfish) 
Vibrio vulnificus 1-7 days Vomiting, diarrhea, abdominal pain; more severe in patients with liver disease or who are immune-compromised; can cause invasive infection (sepsis) 2-8 days Raw seafood, particularly oysters, harvested from warm coastal waters 
Yersinia 1-10 days; usually 4-6 days Appendicitis-like symptoms (diarrhea and vomiting, abdominal pain)  1-3 weeks  Undercooked pork, unpasteurized milk, contaminated water