Election Day 2012 is over, but a couple of questions remain

December, 2012

Eric F. Greenberg | Attorney-at-Law

Did that California Proposition 37 pass?

No, it didn’t. In what was probably the most controversial packaging-related measure under consideration in the U.S. this year, that state initiative would have required foods containing genetically modified ingredients to say so on their labels. Federal law doesn’t require it (though it’s required in many other countries.) The fight in California between proponents and opponents was loud and expensive, and for at least part of the time leading up to the election, polls suggested it would pass. But in the end, it was defeated by several percentage points.

A lot has been written and said about the arguments on both sides of Proposition 37, and here is my contribution. Proponents of Proposition 37 were playing a cagey game. Unable to loudly proclaim GMOs to be unsafe, because scientists generally say they are not, proponents instead played on public fear of GMOs, which are incidentally quite common and have been in our foods for many years.

By requiring only that labels state when GMOs are present, Prop 37 proponents could blink innocently at you when you accused them of wanting to ban such ingredients. “It’s not a ban, it’s just a labeling requirement, and labeling just allows the public to know more information.” But proponents know as well as food marketers that many companies would rather not put that label statement on their package, because it scares away consumers. So instead of labeling, the food companies might be led to avoid GMOs and when they do, voila, you got yourself a ban, at least as to that product.

If the pattern sounds familiar to packagers, it may be because Californians did something similar with their Proposition 65, originally passed in the 1980s. That ballot initiative led to a law that requires anyone who exposes persons in California to any one of a long list of chemicals to first provide a warning. It’s not a ban, it’s just a labeling requirement, but in practice and in effect, it caused makers of many consumer products to reformulate to remove Proposition 65-listed chemicals to avoid the marketing disadvantages of putting warnings containing words like “cancer” on their consumer labels, and to avoid the risk of liability under the law. And voila, you got yourself a ban, at least as to that product.

And here’s the thing about California initiatives: because they apply to products sold in California, regardless of where they come from, they end up being, for most intents and purposes, the same as federal law, required of packagers nationally. Really it’s required internationally, as packagers from all over the world have to contend with California’s laws in order to sell there. For decades, many a company in Europe, Asia and everywhere else has spent many hours and dollars assuring their compliance with California’s Proposition 65. And many food companies were poised to sweat out compliance with Proposition 37 as well. If it had passed, the likeliest outcome for foods containing GMOs was that they’d start to state it on their labels, and not just on their labels when they are sold in California, but their labels for everywhere, because it’s too expensive and difficult to try to make one California-only label and one for everywhere else.

And here I thought laws of national applicability were supposed to be passed by the US Congress, not the citizens of one state.

Did the national election change anything?

I’ll be among the first to say not really. Same president, same parties in control of the Senate and the House, though there are some adjustments to the proportions. (One thing that might change is the salaries of political pundits, because how can so many of these folks have predicted what would happen so inaccurately [“It’ll be a Romney landslide”], or said the presidential election was just too close to call? It wasn’t history’s closest election in terms of the popular vote, and Obama won handily in electoral college votes. Hindsight is 20-20, sure, but was it really so hard to see that coming?)

If the Obama administration continues on the paths he was on, packagers can expect continued developments in these areas:

  • Food safety, as a raft of implementing regulations dealing with preventive controls (HACCP) requirements, food imports, and other important topics, are expected to be loosed now that the election is over. FDA’s newly increased inspection budget means that food packagers will need to be extra vigilant and ready for inspections.
  • GRAS substances, including those in packaging for food, can be expected to be the subject of additional scrutiny and perhaps new requirements for notice to FDA when they are used, or standards for how to evaluate them. These steps are expected to encompass nanotechnology, an emerging area of science with early applications in packaging.
  • Drug compounding and manufacturing will continue to be more heavily scrutinized in the wake of the recent serious contamination problems with an injectable steroid. How drugs are made and also how they are packaged to assure safety and quality, usually a matter of background noise, is increasingly showing up in headlines.
  • Energy drinks, and the challenges they pose about whether they are a safety risk and regarding concepts of what is a dietary supplement versus what is a traditional food, will continue to occupy much government attention. PW

Eric Greenberg can be reached at [email protected], and visit his firm’s Web site at www.ericfgreenbergpc.com.

This article is informational only and is not intended as, and should not be considered to be, legal advice.

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The Long Reach of FDA Accusations

The Long Reach of FDA Accusations

By Eric F. Greenberg, Attorney-at-law

The Long Reach of FDA Accusations

For those of you who think that regulators only pick on the small companies, have I got a story for you. And this story is also eye-opening if you have wondered who the government is most likely to go after when a problem arises, in a world of complicated chains of commerce involving multiple actors making and moving and bringing packaged products to market.

The short version of the story is that the Food and Drug Administration took action against Amazon for products sold on its website. Yes, that Amazon, the one with the big website where you can buy essentially everything for handy delivery. And this wasn’t the first time FDA has warned Amazon about products available on its popular website.

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