Pursuant to elections Code Section 9005, we have reviewed a proposed
statutory initiative related to the labeling of genetically engineered
(GE) food products (A.G. File No. 11‑0099).
Genetic engineering is the technique of removing, modifying, or
adding to the genetic material (especially DNA) of a living organism to
produce some desired change in that organism’s characteristics. Genetic
engineering is used in the development of new plant and animal varieties
that are used as sources of foods.
Federal Regulation. Several federal
agencies currently have authority to regulate GE foods. Under the
Federal Food, Drug, and Cosmetic Act, the federal Food and Drug
Administration has authority to ensure the safety and proper labeling of
most foods and food additives (except meat and poultry), including foods
developed through biotechnology. In addition, the U.S. Department of
Agriculture (USDA) regulates GE crops that may become pests by setting
limits on their importation, interstate movement, and release into the
environment. The USDA can also remove these restrictions for a crop that
is shown to pose no additional risk of becoming a plant pest than a
non-GE variety of that crop.
State Regulation. Under current state law,
the Department of Public Health (DPH) regulates the safety and labeling
of foods (except meats, dairy, and poultry). The California Department
of Food and Agriculture (CDFA) also has authority over several aspects
of food safety. Specifically, CDFA (1) ensures the safety of meat,
poultry, and dairy products; (2) inspects fruits, vegetables, and nuts
for accuracy in content and labeling; and (3) conducts scientific
analyses in support of food and environmental safety.
Disclosure of GE Foods. This measure
requires that GE foods sold at retail in the state be labeled as such in
a way that is clear and conspicuous. Specifically, the measure requires
that raw agricultural commodities (crops) produced entirely or in part
through genetic engineering be labeled with the words “Genetically
Engineered” on the front package or label. If the item is not separately
packaged or does not have a label, these words shall appear on the shelf
or bin where the item is displayed for sale. The measure also requires
that processed foods—foods that are not raw agricultural
commodities—produced entirely or in part through genetic engineering be
labeled with the words “Partially Produced with Genetic Engineering” or
“May be Partially Produced with Genetic Engineering.”
The measure, however, exempts certain categories of food and food
additives from the above labeling requirements. For example, alcoholic
beverages, organic foods, and restaurant food and other prepared foods
intended for immediate consumption would be exempted. In addition,
producers and sellers of the products are exempt from labeling
requirements if they (1) obtain a sworn statement indicating that the
product does not intentionally or knowingly contain GE ingredients or
(2) receive independent certification that their product does not
contain GE ingredients. However, the measure prohibits the use of terms
such as “natural,” “naturally made,” “naturally grown,” and “all
natural” in the labeling and advertising of any food that is genetically
State Regulation. The labeling requirements
specified in this measure for GE foods would be regulated by DPH
pursuant to its existing authority in statute to regulate the safety and
labeling of certain foods. According to the measure, the department may
adopt regulations that it determines are necessary to implement certain
provisions in the measure. For example, DPH would need to develop
regulations specifying sampling procedures to determine whether foods
contain GE ingredients.
Litigation. According to the measure,
violation of the measure’s provisions could be prosecuted by state,
local, or private parties. The measure states that the court could award
these parties all reasonable costs incurred in investigating and
prosecuting the action. In addition, the measure specifies that
consumers could sue for violation of the measure’s provisions under the
state Consumer Legal Remedies Act. In order to bring such action
forward, the consumer would not be required to demonstrate any specific
damage from the alleged violation.
Potential Increase in State Administrative Costs.
This measure could result in additional state costs for DPH to regulate
the labeling of GE foods. Depending on how, and to what extent, the
department chose to implement such regulations, these costs could
potentially reach one million dollars annually.
Potential Increase in Costs Associated With Litigation.
As previously mentioned, this measure allows private individuals to sue
for violations, which could increase the number of cases filed in the
courts. Under these circumstances, the state would incur additional
costs to process and hear the additional cases. The Attorney General and
local district attorneys may also incur some costs as those offices
review and respond to allegations of violations and notices of private
action. The magnitude of these various costs is unknown but could be
significant, depending on the number of cases filed, the number of cases
prosecuted by state and local governments, and how they are adjudicated
by the courts.
Summary of Fiscal Effects. We estimate that
this measure would have the following major fiscal effects:
- Potential increase in state administrative costs of up to one
million dollars annually to monitor compliance with the disclosure
requirements specified in the measure.
- Unknown, but potentially significant, costs for the courts, the
Attorney General, and district attorneys due to litigation resulting
from possible violations to the provisions of this measure.