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Will the ‘processed food’ definition in Prop 37 really kill off ‘natural’ claims on pack?

By Elaine WATSON , 26-Oct-2012
Last updated on 26-Oct-2012 at 15:02 GMT

The dispute over whether Californian GMO labeling initiative Prop 37 will prevent manufacturers from using the term ‘natural’ on foods that contain no GMOs at all continues to rage, with Yes and No campaigns offering diametrically opposed interpretations of this critical aspect of the legislation.

Opponents of Prop 37 argue that it will prohibit manufacturers from marketing any ‘processed food’ as ‘natural’ - even if it does not contain any genetically engineered ingredients.

Supporters, however, argue there is “zero” chance that a firm making natural claims without using GMO ingredients would be successfully prosecuted under Prop 37.

NPA: The road to hell is paved with good intentions

John Shaw: The road to hell is paved with good intentions

According to the text of Prop 37, the definition of ‘processed food’ includes “any food produced from a raw agricultural commodity that has been subject to processing, such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation or milling”.

This would mean scores of products from salted almonds to apple sauce that have not been genetically engineered would no longer be allowed to call themselves ‘natural’, Natural Products Association CEO John Shaw told this publication, adding that the “road to hell is paved with good intentions”.

A spokesman added: "We think it’s clear cut that it would affect any processed foods."

GMA: This provision makes no sense

Louis Finkel, executive VP of government affairs at the Grocery Manufacturers Association, also cited the ‘natural’ issue as a key stumbling block for many members in an article in the latest issue of the American Herbal Products Association report.

He said: “Buried in the fine print… is a far-reaching provision that goes well beyond requiring labels on foods. Prop 37 would prohibit foods and certain products from being marketed or labeled as natural if they have been processed in any way—even if they do not contain any GE ingredients… This provision makes no sense.”

A spokeswoman for the No campaign told us: “The bottom line is that we think it could prohibit all processed foods from being labeled natural.

“The California Attorney General agrees with us, the independent non-partisan California Legislative Analyst Office (LAO) agrees with us . A judge agreed with us. The only person who seems to believe the opposite is an attorney who is doing work for Yes on 37.”

Yes campaign: This is a red herring…

Steve Hoffman: Concerns over the use of the term ‘natural’ are misguided, misunderstood, and deliberately overblown

However, supporters of Prop 37 flatly reject this interpretation.

Steve Hoffman, managing partner of health food marketing agency Compass Natural Marketing, told FoodNavigator-USA: “Concerns over the use of the term ‘natural’ are misguided, misunderstood, deliberately overblown into unfounded statements, and not in the interest of consumer transparency.”

Attorney: There is ‘simply not even a remote possibility’ Prop 37 would be interpreted in this way

Meanwhile, in a memorandum on Prop 37 by law firm Sandler, Reiff, Young & Lamb, P.C, attorney Joe Sandler said: “There is simply not even a remote possibility that [Prop 37] would ever be interpreted or applied to bar the labeling as ‘natural’ of processed foods that do not have any genetically engineered ingredients.

“If a processed food has not been genetically engineered at all and has no genetically engineered content, it is not subject to the labeling requirement of section 110809 to begin with and thus is clearly exempted from labeling.”

Even if some observers find the language of Prop 37 is ambiguous on this point,  he said, it is clear from the law’s own ‘Statement of Purpose’ that its focus is on foods containing GMOs, and not on restricting what firms can say about foods that do NOT contain them.

He added: “The real-world possibility that any court would find that a food that is not genetically engineered at all nevertheless cannot be labeled ‘natural,’ is zero.”

Prop 37 is directed to food produced with genetic engineering, not to processed food in general

Similarly, in a briefing document written by Peter Hecker and Neil Popović, partners in the San Francisco office of Sheppard Mullin Richter & Hampton, LLP, the authors write:  

“Ballot materials prepared by the LAO state that Prop 37 could be interpreted to mean ‘processed food’ is subject to the prohibition against ‘natural’ labels, even if it is not produced with genetic engineering. In our view, this is not the correct interpretation of Prop. 37.”

They add: “The findings, statement of purpose and language of proposition 37 demonstrate that the labeling requirements are directed to food produced with genetic engineering, not to processed food in general.”

Click here to find out more about the ‘vote no’ campaign.

Click here to find out more about the ‘vote yes’ campaign.

Click here to read the text of Proposition 37 (The California Right to Know Genetically Engineered Food Act, which if passed on November 6, 2012, will become law in July 2014).