The past few years have seen a rise in legal controversies arising over the labeling of foods and genetically modified organisms (GMOs) in particular, and this year is no exception. In fact, one company is already being sued over its claim that its product is “100% natural.” See, e.g., Mateusz Perkowski, “GMO vegetable oil lawsuit to proceed,” Capital Press, Jan. 4, 2017, at http://www.capitalpress.com/Nation_World/Nation/20170104/gmo-vegetable-oil-lawsuit-to-proceed (last visited Feb. 1, 2017). This article examines the legal issues over GMO labeling and addresses past and future litigation on the matter.
Whether or not a company is required to label their food product with respect to its contents (and whether those contents include GMOs) is a matter that has been subject to vigorous debate on both the legislative and judicial levels. The case at hand is being argued in California, and venue makes a difference because the states do not have a universal approach to this issue.
In the pending case, several questions have arisen that will translate into attorneys putting expert witnesses to work. For example, one issue that arose was the defendant’s challenge to a class certification request. See id. That challenge was argued both on the trial court level and then appealed to the Ninth Circuit, where the defense argument was rejected. See id. In any case involving class certification matters, particularly ones that involve big defendants, expert witnesses play an invaluable role. Experts on class certification are frequently the ones whose testimony becomes dispositive, and judges listen to these witnesses when rendering their verdicts on such matters.
More importantly, however, GMO labeling issues also require the use of experts at every stage of a case, from the time a complaint is filed until testimony is received. See. e.g., Katie Moore, “Expert on food industry discusses genetically engineered foods, labeling,” The Topeka Capitol Journal (online edition), Jan. 26, 2017, at http://cjonline.com/news/2016-01-26/expert-food-industry-discusses-genetically-engineered-foods-labeling (last visited Feb. 1, 2017). Specifically, the types of expert witnesses who are needed in these types of cases include food labeling experts, experts on GMOs, biotechnology specialists, and food safety experts.. One biotech expert explained the controversy briefly: “Food companies maintain GMO foods are safe to eat while some consumers aren’t so sure. The primary point of contention now is labeling. ‘It’s been a very controversial issue.’” Id.
The case at issue that involves the “100% natural” label claim has raised concern with the Ninth Circuit, which has, in turn, looked to experts at the US Food and Drug Administration (FDA) for guidance. See Mateusz Perkowski, supra. The FDA itself appears troubled, as it “responded that it doesn’t have a formal definition of “natural” and would need to seek input from the public and other agencies before developing one.” Id. In other words, expert witnesses are indispensable, and even the high appellate courts and executive agencies are looking to them to help define specific terms of art in the GMO labeling field, as well as to provide general guidance on how to resolve such labeling controversies.
To get an idea of how divided government officials and agents are, some legislative history may be illustrative. For example, in 2015, then-Representative Mike Pompeo “introduced a bill that would prohibit mandatory labeling. Conversely, Vermont passed a measure that requires labeling to take effect by July 1.” Katie Moore, supra. Clearly, the battles over this issue are highly contentious, and both federal and state government actors have had difficulty resolving where to draw the line on the question of whether or not GMO labeling should be mandatory. See e.g., id.
Even international governments have dealt with this issue in ways that are hardly uniform and are grappling with how to balance the interests of both parties in this controversy. See id. To wit: “Globally, countries have also responded in different ways. Labeling is required in Australia, China, the European Union and Japan. Other countries such as Argentina and Brazil have ramped up their production of GMO crops in recent years.” Id. Indeed, the question over whether food manufacturers should be required to label their products that contain GMOs is far from settled and will continue to puzzle lawmakers and judges in 2017 and beyond.
In 2015 and 2016, GMO labeling was a hot button issue, with strong arguments from both parties involved. This year promises to be no different and, if anything, the aforementioned litigation only confirms that such lawsuits will continue and increase in the years to come. Because such cases tend to involve large numbers of plaintiffs and major corporate defendants, they will be handled in the same manner as other high-stakes litigation, with expert witnesses providing much-needed guidance at every stage. Attorneys in this field would be wise to retain such experts as soon as possible, once they anticipate involvement in a case of this nature, and courts appear to be actively seeking out the experts to help answer the difficult legal questions involved in GMO labeling controversies.
By: Kat S. Hatziavramidis, Attorney-at-Law