NEW ORLEANS — The advice Martin Hahn, a partner at law firm Hogan Lovells, gave at the Institute of Food Technologists conference on how to avoid getting entangled in litigation over labels for GMO food was pretty bleak.
"The best thing that I can do right now is just say no, get off the stage, thank you very much," said Hahn, with a presentation screen blaring "JUST SAY NO" next to him. "Good luck navigating this morass because there's not a damn thing I can tell you that's gonna help."
The crowd laughed and applauded Hahn's declaration. And even though he did continue to provide general legal advice on the issue, he wasn't joking around. The GMO labeling law, which requires disclosure for some products containing items produced through biological engineering, takes full effect for most manufacturers in 2022.
Although the law requiring the labeling was signed in 2016, regulations on how to use the labels did not come out until last year and were not finalized until December. The Agriculture Marketing Service of the USDA, which is tasked with enforcing the law, has a website and staff dedicated to explaining it.
Erin Healy, director of USDA's food disclosure and labeling division, said on the panel that her office has received more than 14,000 comments on the final rule, some of which have resulted in written clarifications.
Everything about GMOs and labeling them is controversial. This creates a perfect situation for class-action lawsuits, Hahn said, especially given massive consumer confusion on the topic.
Hahn started his portion of the session by decrying consumers as "idiots" when it comes to the topic of GMOs. And, he stressed, there are likely to be many consumer lawsuits about the labeling, especially in states where it is easier to bring class-action lawsuits.
"I really want to emphasize the point that the BE disclosure law is not going to be enforced so much by AMS, although they are the ones who ultimately have the procedure to go through and determine whether you're in compliance," Hahn said. "Enforcement is going to take place by the class-action lawyers, the NGOs who are going to be watching our industry ... and they will take every possible opportunity they can to try to argue in court that companies are not complying with the BE disclosure law."
Massive confusion
What is a GMO? What is biologically engineered? Are products that are Non-GMO Project Verified exempted from the GMO label?
All these questions don't have clearly defined answers, Hahn said. And that's a problem when it comes to consumers. Kathy Musa-Veloso, director of health claims in the food and nutrition group of quality assurance testing company Intertek, ran down some of the studies dealing with consumer knowledge about GMOs.
"Bioengineered foods are often associated with consumer fear and mistrust," Musa-Veloso told conference attendees. "This has contributed to an increase in consumer demand for non-bioengineered foods."
The statistics Musa-Veloso presented show a rather unflattering picture of consumer intelligence. One study found 60% of consumers self-reported as not very knowledgeable about GMOs. Their responses to questions about GMOs bolstered that statistic — possibly even showing a larger lack of knowledge. Almost a third of respondents to this study thought vegetables do not have DNA and a third also thought non-GMO tomatoes have no genes. And while the vast majority of corn, soybeans and sugar beets are genetically modified, just 55% thought corn was GMO. Only a third thought soybeans are GMO and less than a fifth felt that way about sugar beets.
"The BE disclosure law is not going to be enforced so much by AMS, although they are the ones who ultimately have the procedure to go through and determine whether you're in compliance. Enforcement is going to take place by the class-action lawyers, the NGOs who are going to be watching our industry ... and they will take every possible opportunity they can to try to argue in court that companies are not complying with the BE disclosure law."
Martin Hahn
Partner, Hogan Lovells
Consumers responding to studies said they felt GMO crops — some of which are altered to be more pest-resistant — were harmful to the environment, Musa-Veloso said. In another study, the vast majority of consumers who avoid GMO crops said they were concerned about human health, although most health professionals say GMOs are just as healthy as their non-biologically engineered counterparts.
Another study put GMO labels to the test. While two-thirds of people in this study did not notice a GMO label on a product, about 31% did. Of those consumers, more than half said the label would influence them not to buy it.
While Musa-Veloso just reviewed the studies and made no comments about the results, Hahn had no restraint.
"They care about something they don't know about," he said.
See you in court?
Hahn, who has spent his career working with food companies on legal issues, was pessimistic about the labeling law. In California, which is well known for its low bar for consumer lawsuits, the new labeling law presents specific challenges.
"In order for you to file a case in California and most other states under consumer protection law, you have to have one consumer that says, 'I was misled.' One consumer. That's all it takes," he said. "You cannot dismiss that case on a motion for summary judgment." And it doesn't take much to get class certification, Hahn says — only needing to show studies, for example, that say a large percentage of consumers are confused by GMO labels.
"That means that you're not talking about reimbursing a consumer for one product. You're talking about reimbursing consumers, [maybe] 20 million consumers, who purchased your product," he said.
"Bioengineered foods are often associated with consumer fear and mistrust. This has contributed to an increase in consumer demand for non-bioengineered foods."
Kathy Musa-Veloso
Director of health claims, food and nutrition group, Intertek
There are no easy solutions for food companies to follow as they design labels to comply with the new law. Some areas are extremely gray when it comes to what needs to be disclosed. New testing methods or interpretations of the law may open the door for consumer lawsuits. And a slightly open door is all that is needed, he said.
Hahn and other attorneys have been asking USDA for many clarifications to the GMO labeling law. He joked that all of the clarification requests will make Healy apply for early retirement — then said very specific clarifications, before the labeling is required, may be what saves companies from litigation.
Hahn, who grew up on a farm, said consumer detachment from how food is produced fuels the negative feeling about GMOs. He knows firsthand how "Roundup Ready" crops, which thrive when the pesticide levels are dialed down, are beneficial. But the average consumer just thinks about chemically altered "frankenfood," he said. In the future, he said, genetic engineering could do amazing things for the food system, like create a strain of wheat that people with celiac disease can eat, increase nutritional value or yield for common crops.
"We've got to do a better job as an industry of bringing the public along to not be afraid of science, but to embrace it," he said.
