Prop 37, Section 110809.2(a)–(i)
Here is the why I’m told.
“(a) Food consisting entirely of, or derived entirely from, an animal that has not itself been genetically engineered, regardless of whether such animal has been fed or injected with any genetically engineered food or any drug that has been produced through means of genetic engineering.
Commentary: in short, milk and milk products such as cheese, yogurt, butter and whey will not have to be labeled as containing GE ingredients, and can be referred to as “natural” even if the milk is from cows treated with rBGH GE hormones.
(b) A raw agricultural commodity or food derived therefrom that has been grown, raised or produced without the knowing and intentional use of genetically engineered seed or food. Food will be deemed to be described in the preceding sentence only if the person otherwise responsible for complying with the requirements of subsection (a) of Section 110809 with respect to a raw agricultural commodity or food obtains, from whoever sold the commodity or food to that person, a sworn statement that such commodity or food: (i) has not been knowingly or intentionally genetically engineered; and (ii) has been segregated from, and has not been knowingly or intentionally commingled with, food that may have been genetically engineered at any time. In providing such a sworn statement, any person may rely on a sworn statement from his own supplier that contains the affirmation set forth in the preceding sentence.
Commentary: a “sworn statement” is normally witnessed, notarized, or taken under official oath. However, as a practical matter “both California Statue and Courts recognize the concept of declaration under penalty of perjury and that a certification/verification statement attached to a pleading or other filing document can be the same as a sworn statement.” So, a letter that is signed with the statement like ““I ___________- certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct” may suffice. It is not clear if such a letter would have to be issued for and accompany every shipment, or merely be on file and updated occasionally. See additional commentary on this issue here.
The concepts of chain of custody, and of only needing to verify up one step in the supply chain, is familiar to the food industry from food safety traceability rules and organic compliance rules. Here, the concept of a sworn statement from a supplier may open the door to unanticipated legal challenges. In case where undisclosed GE contamination is suspected, it will be easier to challenge the validity of the sworn statement than to do the required testing for GE contamination. An observer or whistleblower familiar with the operation may need only to swear out his or her own statement claiming that a commodity was in fact knowingly and/or intentionally made with GE or commingled with GE. If the challenge is successful, the seller holding the sworn statement may face an injunction and lawsuit and is again faced with the cost of their own testing, corrective action, potential damages, and legal defense.
(c) Any processed food that would be subject to section 110809 solely because it includes one or more genetically engineered processing aids or enzymes.
(d) Any alcoholic beverage that is subject to the Alcoholic Beverage Control Act, set forth in Division 9 (commencing with section 23000) of the Business and Professions Code.
(e) Until July 1, 2019, any processed food that would be subject to section 110809 solely because it includes one or more genetically engineered ingredients, provided that: (i) no single such ingredient accounts for more than one-half of one percent of the total weight of such processed food; and (ii) the processed food does not contain more than ten such ingredients.
Commentary: this section conveniently allows up to 5% of GE ingredients, by weight, for the first five years of the Act. This phase-in period and 5% threshold was included to prevent lawsuits based solely on trace amounts of GE material in food. Most food, especially processed food, now has some trace GE contamination even if it is made only with organic ingredients. As a practical matter, 100 grams is the weight of an average size piece of pizza. 5 grams, or 5%, is the weight of one bite. The oil used in the crust and on the pan, if GE, would probably account for most of the 5% allowance.
(f) Food that an independent organization has determined has not been knowingly and intentionally produced from or commingled with genetically engineered seed or genetically engineered food, provided that such determination has been made pursuant to a sampling and testing procedure approved in regulations adopted by the department. No sampling procedure shall be approved by the department unless sampling is done according to a statistically valid sampling plan consistent with principles recommended by internationally recognized sources such as the International Standards Organization (ISO) and the Grain and Feed Trade Association (GAFTA). No testing procedure shall be approved by the department unless: (i) it is consistent with the most recent “Guidelines on Performance Criteria and Validation of Methods for Detection, Identification and Quantification of Specific DNA Sequences and Specific Proteins in Foods,” (CAC/GL 74 (2010)) published by the Codex Alimentarius Commission; and (ii) it does not rely on testing of processed foods in which no DNA is detectable.
Commentary: the sampling and testing procedures required here will be very expensive. A single positive test for GE contamination will not be sufficient to support a lawsuit. Statistically valid sampling requires a certain number of samples must be taken from randomized parts of the whole lot. Multiple test types will have to performed to identify any number of GE markers. Multiple retail packages from multiple locations will have to be purchased, opened and tested. Analysis is easiest in single ingredient raw foods. Processed and multi-ingredient foods may not contain viable DNA, or DNA from GE ingredients may be present in quantities too small to capture.
This section seems to have been written to make sure that substandard or fraudulent tests are not used to allege GE contamination and thus create frivolous lawsuits. However, the consequence will be a very high bar to jump over prior to filing a lawsuit — with significant out-of-pocket testing and validation expenses at risk. In turn, sellers who lose lawsuits will likely be handed a hefty bill for all of the testing that was done to support the alleged violations.
(g) Food that has been lawfully certified to be labeled, marketed and offered for sale as “organic” pursuant to the federal Organic Food Products Act of 1990 and the regulations promulgated pursuant thereto by the United States Department of Agriculture.
Commentary: food labeled “organic” under the National Organic Program can contain up to 5% non-organic (but not GE) ingredients. So, the Organic Rule parallels the 5% combined allowance for GMO ingredients allowed under the Right to Know Act during the phase-in period. We will have to assume that the designation “Made with Organic” (at least 70% organic ingredients) does not qualify for an exemption.
(h) Food that is not packaged for retail sale and that either: (i) is a processed food prepared and intended for immediate human consumption or (ii) is served, sold or otherwise provided in any restaurant or other food facility that is primarily engaged in the sale of food prepared and intended for immediate human consumption.
(i) Medical Food” -http://www.naturalgrocers.com/store-info/blog/california-gmo-right-know-act