How to Fight Misleading GMO Labelling (in Canada)

Canadian food labelling laws are pretty strict. Unlike in the US, it is not enough for a food label to be true in the general sense. In Canada, there is a specific provision in the Food and Drug Act that “prohibits the labelling, packaging, treating, processing, selling or advertising of any food (at all levels of trade) in a manner that is false, misleading or deceptive to consumers or is likely to create an erroneous message regarding the character, value, quantity, composition, merit or safety of the product.” And while Health Canada and the Canadian Food Inspection Agency may be too pressed for resources to enforce the law every time, when they do the consequences for violators can be serious. Just ask Danone.

Sometimes, mischievous companies try to circumvent the law by using a trademark instead of an outright claim, but in Canada that’s illegal, too. Here’s what the CFIA has to say about that: “[T]he word “fresh” in a product’s brand name might be determined to be misleading to consumers if it implies that food itself is fresh when it is not. Generally, the word “fresh” implies that food is not canned, cured, dehydrated, frozen or otherwise processed or preserved.” For a more detailed and in-depths breakdown of Canadian law on the use of trademarks to circumvent labelling laws, I recommend this article, but in short: if your claim would be illegal under Canadian law, don’t try to make it a trademark, either.

This brings us to the question of GMO labelling in Canada. Thanks to almost two decades of fearmongering by misguided activists and the billion dollar “organic” food industry many consumers have been convinced that genetically engineered crops and foods made from these crops pose a unique danger to the environment and human health. Never mind that there is absolutely no scientific foundation for these beliefs – there’s lots of money to be made from fear, and there are always unscrupulous operators willing to do so.

Many companies have tried to bank on these fears by using “non-GMO” labels, implying their foods are somehow better than those not carrying that label. But, slapping a non-GMO label on your product has been illegal since 2004, when the Canadian General Standards Board adopted the (awkwardly named) national standard for the “voluntary labelling and advertising of foods that are and are not products of genetic engineering.” This standard – which is binding under Canadian law – “applies to the voluntary labelling and advertising of food in order to distinguish whether or not such foods are products of genetic engineering, or contain or do not contain ingredients that are products of genetic engineering, irrespective of whether the food or ingredient contains Deoxyribonucleic Acid (DNA) or protein.” Under this standard, it is illegal to describe pretty much any food as “not genetically modified.” As described in the introduction of the standard,

“It has been recognized that the term genetic modification is sometimes used as a synonym for genetic engineering as defined in this standard. However, to genetically modify a plant, animal, or micro-organism implies making any change to the genetic makeup of the organism by any intentional means whatsoever and is defined in this manner in the Food and Drug Regulations. Because of the broad nature of this definition, many food products would be considered genetically modified, and very few could be considered non-genetically modified. In order to meet the needs of consumers for information about the application of specific techniques of biotechnology, the standard limits itself to claims about the use of genetic engineering in the production of foods and food ingredients.”

Until quite recently, this standard made it legally impossible for all but the most unscrupulous companies to slap a “non-GMO” label on their products. That is, until a group of clever American anti-GMO activists came up with the idea of creating what seemed like a smart solution: they created an organization called the “Non GMO Project,” and developed a “standard” under which companies could use their pretty logo as a “seal for GMO Avoidance.”

Like a plague of wheat rust, this seal is now appearing mostly on the products of smaller brands, but also large companies like Post Foods, who really should know better. Even my otherwise beloved Costco is selling these products – which breaks my heart every time.

But, and this is the critical point, this “logo” is illegal in Canada.

According to the “standard” developed by the Non GMO Project, “GMO, or genetically modified organism, is a plant, animal, microorganism or other organism whose genetic makeup has been modified using recombinant DNA methods (also called gene splicing), gene modification or transgenic technology.” The full “standard” can be found here, and on page 23 elaborates more on this definition.

This definition is what per Canadian law should be referred to as “genetic engineering”, not “genetic modification.” It is therefore illegal to use the term “Non GMO” for products that are not made by means of genetic engineering, but are still genetically modified (which is pretty much every plant that isn’t a wild blueberry or fiddlehead).

But that’s not where it ends. According to the CGSB standard – which, I must repeat, is legally binding in Canada – it is illegal to label a food as “not genetically engineered” if there are no genetically engineered variants for sale in Canada. For example, it is illegal to label a tomato as “not genetically engineered” (never mind “not genetically modified”), since no tomatoes sold in Canada are genetically engineered.

The technical language for this in the standard is here:

B2.5.2 Claims that a food is not a product of genetic engineering, when no similar foods that are products of genetic engineering have been offered for sale, are considered misleading because they create the false impression that the product is unique. In such cases, it is appropriate to use an alternate statement or to include an explanatory statement to avoid misunderstanding (par. 6.1.4 and 6.2.4).

Examples:

These onions are not a product of genetic engineering, non-genetically engineered chicken, and non-genetically engineered asparagus are unacceptable statements, since they imply that onions, chicken, or asparagus that are products of genetic engineering have been offered for sale.

So, whenever you see a package of quinoa with the “Non GMO Project Verified” label, you are looking at an illegal product – unless it clearly states that there is no GMO quinoa on the market (Quinoa is probably not genetically modified as per Canadian law. I think.) And any wheat or soy product bearing the label is definitely illegally labelled, since there is not a single variant of wheat or soy on the market that isn’t genetically modified as per Canadian law, and there’s definitely no genetically engineered wheat on the market.

The Non GMO Project Verified label is a blatant attempt to circumvent Canadian law by means of a trademark based on a marketing gimmick disguised as a standard. This “standard”, however, was put together by a group of activists with no oversight from any reputable scientific or industry organization, never mind any government agency. It’s a purely private label companies are allowed to use for a fee so that they can better market their products to a misinformed public. The label is designed to imply that products that carry it are better, healthier, and more environmentally friendly than products that do not carry this label. In short, it’s pure consumer fraud.

Companies that use this label in Canada are either ignorant of Canadian law, or believe that a private American label can be used in disregard of Canadian law.

Fortunately, there’s a way to put a stop to this. The Canadian Food Inspection Agency, which is the Canadian government agency responsible for enforcing Canadian food labelling laws, is obligated to respond to consumer complaints about illegally labelled food products. For this purpose, it has set up a complaints mechanism on its website any consumer can use to identify illegal labels.

This is the link: http://www.inspection.gc.ca/food/information-for-consumers/report-a-concern/contact-us/eng/1390269985112/1390346078752

The form requires quite a bit of information about both the person filing the complaint, as well as the product about which the complaint is filed. In addition, the form requires a specific description of the complaint. I suggest the following wording – though I welcome any suggestions for better wording:

This product carries the “Non GMO Project Verified” logo, implying the food is not genetically modified. This claim is in violation of CAN/CGSB-32.315-2004 “Voluntary labelling and advertising of foods that are and are not products of genetic engineering,” according to which the term “not genetically modified” may not be used as a food label in Canada. The use of a logo violates Canadian labelling law, according to which “the use of trade-marks in labelling and advertising food sold in Canada must comply with applicable federal food legislation, including the Food and Drugs Act (FDA) and Consumer Packaging and Labelling Act (CPLA).”

If enough people file complaints about such products, the CFIA will have little choice but start investigating and take action.

Consumer fraud is wrong. Time to put a stop to it.

Dietwald Claus