OLR Bill Analysis
AN ACT CONCERNING CHILDREN'S FOOD AND GENETIC ENGINEERING.
Starting July 1, 2017, and regardless of existing law, this bill requires baby food, infant formula, or children's food partially or entirely produced with genetic engineering and offered or intended for retail sale in Connecticut to be clearly labeled “produced with genetic engineering.”
It generally deems as “misbranded” any food not so labeled, but it exempts from civil liability distributors and retailers that sell or offer for sale such food not meeting the labeling requirement.
It requires the Department of Consumer Protection (DCP), in consultation with the Agriculture, Energy and Environmental Protection, and Public Health departments, to adopt implementing regulations, and authorizes the DCP commissioner to impose a civil penalty of up to $5,000 for each violation of the bill's provisions.
Existing law, which does not take effect unless four other states meeting certain criteria enact similar laws, requires certain foods, including baby and children's food and infant formula, that are entirely or partially genetically engineered to be labeled as such, and generally deems as misbranded any food not so labeled (see BACKGROUND).
EFFECTIVE DATE: October 1, 2016
Under the bill, starting July 1, 2017 and regardless of existing law, baby food, infant formula, or children's food partially or entirely produced with genetic engineering (see BACKGROUND) must be clearly and conspicuously labeled “produced with genetic engineering” if it is offered or intended for retail sale in the state. The label must be the same size and in the same font as the ingredients listed on the food label's nutritional facts panel.
The bill generally deems as misbranded baby food, infant formula, and children's food produced with genetic engineering that does not clearly and conspicuously display the required label. By law, the state may embargo and seize misbranded food; a person who misbrands food or sells it may be subject to criminal penalties (see BACKGROUND).
Exceptions to Finding of Misbranding
Improperly labeled baby food, infant formula, and children's food produced with genetic engineering is not considered misbranded under the bill if:
1. the person producing the food or formula did not know that it was created with genetically engineered material and obtains, from the person who sold or provided him or her the material, a sworn statement that the material was not knowingly (a) genetically engineered and (b) commingled with any genetically engineered material; and
2. before July 1, 2021, the product is subject to the labeling requirement only because it includes material produced with genetic engineering that together comprise nine-tenths of one percent (0.009) or less of the product's total weight.
This latter exception is similar to one in existing law for genetically engineered processed foods, except the current total weight exception (also nine-tenths of one percent) does not include the knowledge requirement and ends on July 1, 2019 (CGS § 21a-102).
If both this bill and existing law (CGS § 21a-92c, see BACKGROUND) take effect it is not immediately clear which of these and other possibly inconsistent provisions, such as the different penalty provisions (see below) would take precedence.
PENALTIES, INJUNCTIVE RELIEF, AND COURT COSTS
The bill authorizes the DCP commissioner to impose a civil penalty of up to $5,000 for each violation of the bill. But existing law (CGS § 21a-92c) generally subjects knowing violators to a daily fine of up to $1,000 per product. Existing law also imposes criminal penalties for misbranding food (see BACKGROUND). The bill exempts from civil liability distributors and retailers that sell or offer for sale baby and children's food and infant formula that does not meet the labeling requirement.
The bill authorizes the attorney general, at the DCP commissioner's request, to bring an action in Hartford Superior Court to collect the penalty and for any injunctive or equitable relief. The bill entitles the state to recover costs when it is the prevailing party, including the costs of investigation, expert witness fees, the costs of the action, and reasonable attorney's fees.
“Baby food” is commercially available, prepared solid food consisting of soft paste or an easily chewed food intended for consumption by children age two or younger.
Under the bill and existing law, “infant formula” is a commercially available (1) milk- or soy-based powder; (2) concentrated liquid; or (3) ready-to-feed substitute for human breast milk, intended for infant consumption.
“Children's food” is commercially available food or beverage intended for consumption by children age 11 or younger, including breakfast cereal, snack food, candy, dairy products, baked goods, carbonated beverages, fruit juice and non-carbonated beverages, prepared foods and meals, and frozen and chilled desserts (see definitions below).
Children's Food Definitions
“Snack food” includes potato, corn, and tortilla chips; pretzels; nuts; popcorn; snack, granola, breakfast, and cereal bars; crackers; cookies; processed fruit snacks; gelatin; and pudding;
“Candy” includes chocolate, candy bars, hard and chewy candy, including licorice, “gummi” candy, jelly beans, and sour candy, but not gum or breath mints;
“Dairy products” include milk, flavored milk drinks, yogurt, yogurt drinks and cheese, but not butter, eggs, cream, cottage cheese, or sour cream;
“Baked goods” include snack cakes, pastries, doughnuts, bread, rolls, bagels, breadsticks, buns, croissants, taco shells, tortillas, and toasted baked goods, such as frozen waffles, French toast sticks, and toaster pastries;
“Carbonated beverages” include all diet and regular nonalcoholic carbonated beverages;
“Fruit juice and noncarbonated beverages” include fruit juice, juice drinks, fruit-flavored drinks, vegetable juice, tea drinks, energy drinks, sports drinks, cocoa, bottled water, ready-to-pour beverages, and beverages sold in concentrated or powdered form. It does not include any coffee, loose tea, or tea bags;
“Prepared foods and meals” include frozen and chilled entrees, frozen pizzas, canned soups and pasta, lunch kits, and non-frozen packaged entrees; and
“Frozen and chilled desserts” include ice cream, sherbet, sorbet, popsicles, and other frozen novelties, frozen yogurt, and frozen baked goods, including frozen pies and cakes.
By law, genetic engineering is a process by which a food or food ingredient is produced from an organism or organisms in which the genetic material has been changed by (1) in vitro nucleic acid techniques, including recombinant DNA techniques and the direct injection of nucleic acid into cells or organelles, or (2) fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells or protoplasts do not fall within the same taxonomic group in a way that does not occur by natural multiplication or natural recombination (CGS § 21a-92b (2)).
Misbranding Criminal Penalties
The law prohibits misbranding food or selling misbranded food in Connecticut (CGS § 21a-93). A first violation is punishable by up to six months in prison, a fine of up to $500, or both. Subsequent violations, and violations made with the intent to defraud or mislead, are punishable by up to one year in prison, a fine of up to $1,000, or both (CGS § 21a-95).
Generally, a person is not subject to criminal penalties for selling misbranded food within the state if he or she obtains in good faith a document signed by the person from whom he or she received the food, stating that the food is not misbranded in violation of this law.
But this exemption does not apply to violations done with the intent to defraud or mislead (CGS § 21a-95).
DCP Embargo and Seizure of Misbranded Food
The law authorizes the DCP commissioner to embargo food that he determines, or has probable cause to believe, is misbranded. He may tag the item as embargoed. Once the commissioner embargoes an item, he has 21 days to either begin summary proceedings in Superior Court to confiscate it or to remove the embargo.
Once the commissioner files a complaint, the law requires the court to issue a warrant to seize the described item and summon the person named in the warrant and anyone else found to possess the specific item. The court must hold a hearing, generally within five to 15 days from the date of the warrant. The court must order the food confiscated if it appears that it was offered for sale in violation of the law.
If the seized food is not injurious to health and could be brought into compliance with the law if it were repackaged or relabeled, the court may order it delivered to its owner upon payment of court costs and provision of a bond to DCP assuring that the product will be brought into compliance (CGS § 21a-96).
Related State Law
A state GMO labeling law, enacted in 2013, has not yet taken effect. CGS § 21a-92c generally requires certain foods intended for human consumption, including baby and children's food and infant formula, that are entirely or partially genetically engineered to be labeled as such. The law generally deems these items misbranded if they are not so labeled. It generally subjects knowing violators to a daily fine of up to $1,000 per product, but retailers are liable for failure to label only under certain conditions. If four other states meeting certain criteria enact similar laws, this law will go into effect on the first day of October following the enactment of such a law in the last of the four states. One of these states must border Connecticut, and the total population of the enacting states in the northeast must exceed 20 million based according to 2010 Census figures. States to which this applies are the other five New England states, New Jersey, New York, and Pennsylvania.
Possible Congressional Preemption
The U.S. House of Representatives has passed legislation that would bar states from passing or enacting their own GMO labeling laws. The measure failed in the U.S. Senate on March 16, 2016. Supporters of the bill say they will continue to work with the Senate on compromise legislation that would establish federal labeling standards.
Related Cases – Labeling in General
Federal law generally prohibits states from requiring foods to be labeled in a manner inconsistent with federal labeling requirements. Labeling cases also raise First Amendment and Commerce Clause issues under the U. S. Constitution.
In a case involving a Vermont law requiring dairy manufacturers to label milk and milk products derived from or that may have been derived from cows treated with recombinant bovine somatrotropin (a synthetic hormone used to increase milk production), the U.S. Second Circuit Court of Appeals ruled the law was likely unconstitutional on First Amendment grounds. The court concluded that Vermont's asserted state interest of a public “right to know” and strong consumer interest was inadequate to compel the commercial speech (i.e., the labeling requirement). Because the Second Circuit ruled on First Amendment grounds, it did not reach the Commerce Clause claims (International Dairy Foods Association v. Amestoy, 92 F. 3d 67 (2d Cir. 1996)).
The Commerce Clause gives Congress the power to regulate commerce among the states (U.S. Const. Art. I, § 8). It has also been held to mean that states cannot pass laws that improperly burden or discriminate against interstate commerce. Under the so-called “dormant” Commerce Clause doctrine, a law that does not discriminate on its face, supports a legitimate state interest, and only incidentally burdens interstate commerce, is constitutional unless the burden is excessive in relation to local benefits.
Related Cases – GMO (Genetically Modified Organism) Labeling
In a case now before the 2nd U.S. Circuit Court of Appeals, the Grocery Manufacturers Association (GMA) and other food associations have challenged Vermont's 2014 mandatory GMO labeling law (Act 120).
Among other things, GMA claims the law violates the First Amendment by compelling manufacturers “to use their labels to convey an opinion with which they disagree… namely, that consumers should assign significance to the fact that a product contains an ingredient derived from a genetically engineered plant” (Grocery Manufacturers Association et al v. Sorrell, Case # 5:14-CV-117).
Committee on Children