Natural Products Insider

NOV-DEC 2016

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60 INSIDER November/December 2016 compa nies on compliance and publishing fi ndings, but denies the ability to recall non-compliant products. Further, it is silent as to any fi nes or other penalties. Thus, enforcement capabilities of regulators remain to be seen. Will the Disclosure Requirements Affect Third-Party Certifi cations? It does not appear the proposed regulations will do away with private non-GMO certifi ers. The new law states lack of a GMO disclosure does not necessarily mean the product is completely GMO-free. Therefore, unless the proposed disclosure regulations indicate to the contrary, third-party certifi cations would likely be unaffected by the GMO disclosure requirements. Odds and Ends Two parts of the new GMO labeling bill have interesting implications. The fi rst relates to certifi ed organic foods. For a food product to be certifi ed organic under USDA's National Organic Program (NOP), it cannot contain GMO ingredients. Therefore, certifi ed organic products could make a "Non GMO" claim if they keep the appropriate documentation on fi le. However, the new law goes one step further—stating certifi cation alone is suffi cient to substantiate a non-GMO claim. Although a seemingly fi ne distinction, it is a rare instance where the federal government has explicitly defi ned what documentation is suffi cient to substantiate an advertising claim. Another seemingly small part with possibly great implications is what is considered to not be a GMO food. The new bill prohibits animal products from being considered GMO solely because the animal was fed GMO feed. Several consumer lawsuits have argued that a non-GMO claim is misleading because the animals ate GMO feed. The new law would therefore undermine these positions. Both industry and regulators have long awaited explicit guidance regarding GMO labeling. The law is likely to be a step in the right direction; however, key aspects of the law and corresponding regulations remain to be seen. Thus, companies should evaluate their products while awaiting more detailed regulations pursuant to the federal law. Jennifer Adams, associate, Amin, Talati Upadhye (amintalati.com), focuses on defending companies in challenges from FDA, USDA, FTC, state attorneys general, advertising class action lawsuits and the National Advertising Division (NAD). She also counsels on developing and verifying advertising claim substantiation, as well as labeling and cGMP (current good manufacturing practice) compliance. Adams additionally advises clients on GRAS (generally recognized as safe) and new dietary ingredient (NDI) requirements, California Proposition 65 compliance and disputes, facility inspections, form 483 observations, FDA warning letters, import and export of FDA regulated products, detentions, seizures, injunctions and import alerts. thresholds below 0.09 percent—not required under organic standards—helps ensure protection for crops such as corn, soy, canola and alfalfa, which have a high risk for contamination from GMOs. This dual certifi cation pattern across channels, particularly in light of USDA's new clarifi cation about non-GMO claims on organic products, raises the question of whether organic brands will maintain enrollment with the Non-GMO Project's testing or opt out. The Non-GMO Project, a SPINS partner for the last six years, shows sales of $20 billion on items with its verifi cation, up from $1.3 billion in 2011. Cross-channel analysis shows 7 percent growth. Sales of products not verifi ed by the Non-GMO Project show modest change over prior year: only 1.6 percent. SPINS' Labeled Non-GMO attribute shows an additional $6 billion in cross- channel sales, growing at 18 percent. This captures the sales of products with other non-GMO certifi cations (apart from Non-GMO Project Verifi cation), as well as those with non-GMO statements that have not been qualifi ed by a third-party. To Label or Avoid GMOs? It will likely take USDA two years until the new law's regulatory implications are made fully clear: which products will be covered and how, what allowable thresholds may be, and even which, if any, additional certifi er and labeling options may emerge. SPINS data show consumer expectations for transparency are presently satisfi ed by existing third-party voluntary standards, and demand is growing. The outcome of the published regulations, whether found favorable or unfavorable by industry stakeholders, may or may not provide standards that earn the approval of transparency advocates and may therefore reinforce the value of third-party qualifi cations. With so much yet undecided, still more questions arise. Will brands subject to mandatory disclosure of GMO content choose to label with on-package statements, like the Campbell Soup Co. maintains it will do? Will brands gravitate toward an electronic scanning code option instead? Will brands shift formulations to non-GMO ingredients and affect an expansion of non-GMO supply chains? Only time will tell. Amanda Hartt is the manager of policy and partners at SPINS (spins.com). She is a research professional specializing in food policy, nutrition, sustainability and ethical sourcing. With more than 10 years of experience in economic research, on-the-ground work as a Peace Corps volunteer and academic study of global supply chains, Hartt brings a macro perspective to synthesizing food system dynamics. She has a master's degree in food policy from City University London. GMOs The Intersection of GMO Government Policy and Voluntary Standards GMO-My Gosh! GMO Labeling Requirements Continued from page 58 Continued from page 56

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