Food law 2019: GMO-free labelling

“GMO-free” offers a strong and appealing marketing message. The use of this claim is not regulated at the EU level. Individual member states, including Poland, are adopting national criteria that must be met by products for the manufacturer to call them GMO-free. What are these criteria, and what products do they apply to?

What will change?

The rules for marketing and labelling of food and products produced from genetically modified organisms are set forth primarily in EU regulations 1829/2003 and 1830/2003. Under a compromise worked out about 15 years ago, if products contain GMOs in quantities below 0.9%, and the producer can show that the presence of GMOs is “adventitious or technically unavoidable,” such products are treated as conventional products and need not be labelled as containing GMOs. Citing the general rules for providing food information to consumers set forth in Regulation 1169/2011, some manufacturers already rely on this as a basis for labelling products as “GMO-free” (or similar language).

Information of this type (on packaging, or in advertising flyers or TV ads) impacts food consumers. Consequently, such labelling may be questioned as potentially misleading to consumers, e.g. with respect to the true composition of the product (if it does in fact contain GMOs) or as an attempt to claim as unique to one’s products a characteristic that is in fact shared by all products from a given category (if none of them contain GMOs).

The Act on Labelling of Products Produced Without the Use of Genetically Modified Organisms as GMO-Free, currently being drafted at the Polish Ministry of Agriculture and Rural Development, would introduce detailed rules for the use of terms of this type. Such labelling would still be voluntary, but its use would be subject to specific conditions.

Generally, labelling as “GMO-free” (on products of plant origin) or “produced without using GMOs” (on animal products) could be used for a wide range of products, i.e. foods of plant or animal origin and feeds—but only if they meet specific requirements.

Will GMO-free mean 0% GMOs?

The planned Polish regulations are not terribly restrictive, but with respect to foods they are still much more rigorous than the EU regulations. For foods, the permissible limit of GMOs to be GMO-free would be 0.1%, and for feeds 0.9%, assuming such quantities are adventitious or technologically unavoidable. By contrast, the EU regulations provide a threshold of 0.9% for both food and feed.

This means that the producer of a food containing between 0.1% and 0.9% GMOs could not label the product in Poland as GMO-free. At the same time, such a food would not fall within the obligation under the EU regulations to label it as containing GMOs. Consequently, the label of such a product will probably be silent on GMOs.

In the case of feeds, there would be a single boundary set at 0.9%. Thus if there were less GMOs in feed, it could be labelled as GMO-free, or if more, the presence of GMOs would have to be indicated on the label.

How to document what a cow was fed?

This is a key question that must be answered to determine whether food obtained from animals (such as milk) or derived from animals (such as meat) may be labelled as produced without the use of GMOs—as only food from animals that have not been fed GMOs (i.e. consuming feed containing less than 0.9% GMOs) could be labelled as GMO-free.

The method of feeding animals during the waiting period (which is not yet known, but is to be established in an executive regulation issued pursuant to the proposed act) will probably have to be documented using invoices showing the purchase of GMO-free feed. The farmer’s statement on the method of feeding of animals may not be sufficient. Information concerning the method of feeding animals (along with the appropriate documents) would have to verifiable along the entire chain of food production and distribution so that, in the event of an inspection, a manufacturer of dairy desserts, for example, made from milk produced without the use of GMOs, would be capable of quickly and effectively justifying the GMO-free labelling of the product.

“GMO-free” on a head of lettuce?

In the case of products of plant origin, it would be permissible to use “GMO-free” labelling only on products that could contain genetically modified organisms. If there is no such possibility, the use of “GMO-free” labelling would not be allowed, because claiming a characteristic possessed by an entire category of products could mislead consumers into believing that only this specific product is free of GMOs, while other products in the category do contain GMOs.

This is a key rule for products of plant origin, because not all plants have genetically modified varieties. Thus, for example, a “GMO-free” claim could be made for maize, rapeseed or soya, but not for apples, carrots, lettuce or wheat—at least not until authorised GMO varieties of the latter produce appear in the EU.

What about products from multiple ingredients?

The relatively simple mechanism outlined above may prove not to be so straightforward when applied to products with multiple ingredients. Doubts may arise in particular when some of the ingredients in a product of animal or plant origin can be labelled as GMO-free, but some cannot due to the lack of genetically modified varieties.

In such cases, the permissibility of labelling a product as free of GMOs would be determined by a 50% rule. If more than 50% of the ingredients of a product made from multiple ingredients could be labelled as GMO-free, and each of the ingredients meets the relevant conditions (in particular, documented feeding of the animals during the waiting period before food is obtained or derived from animals), then the entire product could be labelled as GMO-free.

How much time is left?

The legislative process has not been completed yet, and the draft adopted on 5 February 2019 by the Council of Ministers was notified to the European Commission on 11 February 2019 as a legal act that could potentially affect the functioning of the free flow of goods within the EU. Nonetheless, there is not much time left to decide whether to join the system for GMO-free labelling and how to fulfil the planned requirements.

The bill contains a mutual recognition clause, which means that products labelled as GMO-free in accordance with regulations in force in the country of production may also be labelled as such on the Polish market, even if they do not meet the Polish conditions for use of such labelling. Consequently, the risk that the Polish act will be blocked at the EU level appears low. (The Commission’s position will probably be released in May 2019, when the three-month period for completion of the notification procedure ends.)

Thus if no objections are raised during the technical notification to the Commission blocking the legislative process, work on the bill will probably proceed so that, as stated in the proposal, the act would enter into force on 1 January 2020. So all indications are that producers have less than a year to prepare for the new regime.

Joanna Krakowiak, attorney at law, Life Science and Regulatory practice, M&A and Corporate practice, Wardyński & Partners