Add §391-u, Gen Bus L; amd §§198 & 201, Ag & Mkts L
Provides for the labeling of raw agricultural commodities, processed foods, seed, and seed stock produced with genetic engineering; defines terms; imposes penalties for false labels and misbranding; sets forth exemptions.
STATE OF NEW YORK
________________________________________________________________________
485--B
2015-2016 Regular Sessions
IN SENATE(Prefiled)
January 7, 2015
___________
Introduced by Sens. LAVALLE, ADDABBO, AVELLA, BOYLE, BRESLIN, CARLUCCI,
COMRIE, DILAN, ESPAILLAT, HAMILTON, HASSELL-THOMPSON, HOYLMAN, KRUEG-
ER, LANZA, LATIMER, MARTINS, MONTGOMERY, MURPHY, PANEPINTO, PARKER,
PERALTA, PERKINS, RIVERA, ROBACH, SAVINO, SERRANO, STAVISKY -- read
twice and ordered printed, and when printed to be committed to the
Committee on Consumer Protection -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- recommitted to the Committee on Consumer Protection in accord-
ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the general business law and the agriculture and markets
law, in relation to the labeling of genetically modified foods
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature finds that
2 New York state consumers have the right to know whether the foods they
3 purchase have been produced with genetic engineering so they can make
4 informed purchasing decisions.
5 Further the legislature finds that:
6 (a) Currently, there is no federal law that requires food producers to
7 identify whether foods were produced with genetic engineering. At the
8 same time, the United States Food and Drug Administration (FDA) does not
9 require safety studies of such foods;
10 (b) Identification of foods produced with genetic engineering can
11 provide a critical method for tracking effects of consuming foods
12 produced with genetic engineering;
13 (c) More than sixty countries, including key United States trading
14 partners, have laws mandating disclosure of genetically engineered
15 foods. Identifying foods produced with genetic engineering will help
16 protect our state's export market;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03147-07-6
S. 485--B 2
1 (d) A variety of genetically engineered crops are commercially culti-
2 vated and sold in the United States, including corn, canola, sugar
3 beets, soybean, cotton, alfalfa, and papaya. It has been estimated that
4 70-80% of packaged grocery products contain some materials derived from
5 these genetically engineered crops;
6 (e) Without disclosure, consumers with certain dietary restrictions
7 may unknowingly consume such food in violation of such dietary
8 restrictions;
9 (f) Preserving the identity, quality, and reliability of agricultural
10 products is of prime importance to our state's fiscal health;
11 (g) The cultivation of genetically engineered crops can cause serious
12 environmental impacts;
13 (h) It is the intent of this act to ensure that New York consumers and
14 farmers are fully and reliably informed about whether the food and seed
15 they purchase and eat were produced with genetic engineering so they may
16 choose for themselves whether to purchase and eat or use such food and
17 seed;
18 (i) It is the intent of this act only to regulate the labeling of
19 seed, seed stock, and food for human consumption offered for retail sale
20 within New York State.
21 § 2. The general business law is amended by adding a new section 391-u
22 to read as follows:
23 § 391-u. Genetically engineered foods; required labeling. 1. Defi-
24 nitions. As used in this section, the term:
25 (a) "Department" means the state department of agriculture and
26 markets.
27 (b) "Distributor" means a person or business engaged in any method of
28 distributing or transporting a food or food product from one place to
29 another.
30 (c) "Enzyme" means a protein that catalyzes chemical reactions of
31 other substances without itself being destroyed or altered upon
32 completion of the reactions.
33 (d) "Genetically engineered," or "genetically modified," or any deriv-
34 ative of those words, as applied to any food for human consumption or
35 seed means produced from or with an organism or organisms with genetics
36 altered materially through the application of:
37 (i) in vitro nucleic acid techniques, including but not limited to
38 recombinant deoxyribonucleic acid (DNA) techniques and the direct
39 injection of nucleic acid into cells or organelles; or
40 (ii) the fusion of cells beyond the taxonomic family that overcomes
41 natural physiological, reproductive, or recombinant barriers and that
42 are not techniques used in traditional breeding and selection.
43 For purposes of subparagraph (i) of this paragraph, "in vitro nucleic
44 acid techniques" include, but are not limited to, recombinant DNA or RNA
45 techniques that use vector systems, and techniques involving the direct
46 introduction into the organisms of hereditary materials prepared outside
47 the organisms such as biolistics, microinjection, macro-injection,
48 chemoporation, electroporation, microencapsulation, and liposome fusion.
49 (e) "Manufacturer" means a person or business engaged in the
50 production or processing of seed, seed stock, or any food product.
51 (f) "Medical food" means a food that is formulated to be consumed or
52 administered enterally under the supervision of a physician and that is
53 intended for the specific dietary management of a disease or condition
54 for which distinctive nutritional requirements, based on recognized
55 scientific principles, are established by medical evaluation.
S. 485--B 3
1 (g) "Processed food" means any food other than a raw agricultural
2 commodity, including any food produced from a raw agricultural commodity
3 that has been subject to processing such as canning, smoking, pressing,
4 cooking, freezing, dehydration, fermentation, or milling.
5 (h) "Processing aid" means:
6 (i) a substance that is added to a food during the processing of the
7 food but is removed in some manner from the food before it is packaged
8 in its finished form;
9 (ii) a substance that is added to a food during processing, is
10 converted into constituents normally present in the food, and does not
11 significantly increase the amount of the constituents naturally found in
12 the food; or
13 (iii) a substance that is added to a food for its technical or func-
14 tional effect in the processing but is present in the finished food at
15 insignificant levels and does not have any technical or functional
16 effect in that finished food.
17 (i) "Stock-keeping unit," for purposes of subdivision three of this
18 section, shall mean all of a group of food items of the same brand,
19 quantity of contents, retail price, and variety.
20 (j) "Raw agricultural commodity" means any plant, animal, or fungi
21 grown or produced for human food-use purposes.
22 (k) "Retailer" means a person or business engaged in selling food from
23 individuals or businesses to the end-user.
24 2. Labeling of genetically engineered seed and food. (a) Any food for
25 human consumption, seed, or seed stock offered for retail sale in New
26 York is misbranded if it is entirely genetically engineered or partially
27 produced with genetic engineering and that fact is not disclosed as
28 follows:
29 (i) In the case of a raw agricultural commodity that is not separately
30 packaged or labeled, the words "Produced with Genetic Engineering" or
31 any other derivative of those words, the initials "GE", "GM", or "GMO",
32 or a derivative of those phrases, shall be placed on the container used
33 for packaging, holding, and/or transport in a clear and conspicuous
34 manner by the manufacturer, and maintained by the distributor, and
35 displayed in a clear and conspicuous manner on the retail store shelf or
36 bin in which such commodity is offered for sale by the retailer.
37 (ii) In the case of a raw agricultural commodity that is separately
38 packaged or processed food containing some products of genetic engineer-
39 ing, the manufacturer must label the food, in a clear and conspicuous
40 manner on the package of such food, with the words "Produced with Genet-
41 ic Engineering" or any other derivative of those words, the initials
42 "GE", "GM", "GMO", or a derivative of those phrases.
43 (iii) In the case of any seed or seed stock, the manufacturer or other
44 entity responsible for producing the seed must label the seed or seed
45 stock container, the sales receipt, and any other reference to identifi-
46 cation, ownership, or possession, in a clear and conspicuous manner with
47 the words "Produced with Genetic Engineering" or any other derivative of
48 those words, the initials "GE", "GM", "GMO", or a derivative of those
49 phrases.
50 (b) This section shall not be construed to require either the listing
51 or identification of any ingredients that were genetically engineered,
52 nor that the phrase "Produced with Genetic Engineering" or any other
53 derivative of those words, the initials "GE", "GM", "GMO", or a deriva-
54 tive of those phrases be placed immediately preceding any common name or
55 primary product descriptor of a food.
S. 485--B 4
1 (c) Any processed food that would be subject to this section solely
2 because it includes one or more materials produced with genetic engi-
3 neering is not misbranded provided that the genetically engineered mate-
4 rials in the aggregate do not account for more than nine-tenths of one
5 percent of the total weight of the processed food.
6 (d) This subdivision does not apply to any of the following:
7 (i) Food consisting entirely of, or derived entirely from, an animal
8 that has not itself been produced with genetic engineering, regardless
9 of whether the animal has been fed with any food produced with genetic
10 engineering or treated with any drug or vaccine that has been produced
11 with genetic engineering;
12 (ii) A raw agricultural commodity, processed food, or seed that has
13 been grown, raised, produced, or derived without the knowing and inten-
14 tional use of genetically engineered seed or food. To be included within
15 the exclusion under this paragraph, the person or entity responsible for
16 complying with this subdivision with respect to a raw agricultural
17 commodity, processed food, seed, or seed stock must obtain, from whomev-
18 er sold the raw agricultural commodity, processed food, seed, or seed
19 stock to that person, a written statement, which may be included on an
20 invoice that may be in an electronic form, that the raw agricultural
21 commodity, processed food, seed, or seed stock: (1) has not been know-
22 ingly or intentionally produced with genetic engineering; and (2) has
23 been segregated from, and has not been knowingly or intentionally
24 commingled with foods or seeds that may have been produced with genetic
25 engineering;
26 (iii) Any processed food that would be subject to this section solely
27 because one or more of the processing aids or enzymes used in its
28 production were produced with or derived from genetic engineering;
29 (iv) Any alcoholic beverage that is subject to regulation by the alco-
30 holic beverage control law;
31 (v) Food that has been lawfully certified to be labeled, marketed, and
32 offered for sale as "organic" pursuant to the federal Organic Foods
33 Production Act of 1990, 7 U.S.C. 6501, et seq. as amended from time to
34 time, and the National Organic Program regulations promulgated pursuant
35 thereto by the United States Department of Agriculture;
36 (vi) Food that is not packaged for sale and that either: (i) is a
37 processed food prepared and intended for immediate human consumption or
38 (ii) is served, sold, or otherwise provided in any restaurant, food
39 facility, or food retailer that is engaged in the sale of food prepared
40 and intended for immediate human consumption; or
41 (vii) Medical food.
42 3. Violation. Any person or entity who violates the requirements of
43 this section shall be liable for a civil penalty of not more than one
44 thousand dollars, per day, per stock-keeping unit, provided however that
45 no liability shall arise under this section until after said person or
46 entity is given formal notice of the violation.
47 4. Notice of violation. In any case where there has been a final
48 determination by the department, of a violation of any of the provisions
49 of this section, the department shall make available to the public,
50 without charge, the following information:
51 (a) the name and business address of the violator;
52 (b) the date or dates of inspection of the violator's premises by the
53 department;
54 (c) the violation that was determined to have occurred, including the
55 name of the product; and
56 (d) the amount of the penalty that was assessed by the department.
S. 485--B 5
1 5. Third-party protection; reliance on written statement. A distribu-
2 tor or retailer that sells a raw agricultural commodity, processed food,
3 seed, or seed stock that has been produced with genetic engineering that
4 fails to make the disclosure required pursuant to subdivision two of
5 this section, is not subject to financial liability in any civil action
6 to enforce this section if the distributor or retailer relied on the
7 written statement obtained under subdivision two of this section
8 provided by the manufacturer stating that the raw agricultural commod-
9 ity, processed food, seed, or seed stock is not subject to the disclo-
10 sure requirements under this section.
11 § 3. Section 198 of the agriculture and markets law is amended by
12 adding a new subdivision 12 to read as follows:
13 12. The term: (a) "Distributor" means a person or business engaged in
14 any method of distributing or transporting a food or food product from
15 one place to another.
16 (b) "Enzyme" means a protein that catalyzes chemical reactions of
17 other substances without itself being destroyed or altered upon
18 completion of the reactions.
19 (c) "Genetically engineered," or "genetically modified," or any deriv-
20 ative of those words, as applied to any food for human consumption or
21 seed means produced from or with an organism or organisms with genetics
22 altered materially through the application of:
23 (i) in vitro nucleic acid techniques, including but not limited to
24 recombinant deoxyribonucleic acid (DNA) techniques and the direct
25 injection of nucleic acid into cells or organelles; or
26 (ii) the fusion of cells beyond the taxonomic family that overcomes
27 natural physiological, reproductive, or recombinant barriers and that
28 are not techniques used in traditional breeding and selection.
29 For purposes of subparagraph (i) of this paragraph, "in vitro nucleic
30 acid techniques" include, but are not limited to, recombinant DNA or RNA
31 techniques that use vector systems and techniques involving the direct
32 introduction into the organisms of hereditary materials prepared outside
33 the organisms such as biolistics, microinjection, macro-injection,
34 chemoporation, electroporation, microencapsulation, and liposome fusion.
35 (d) "Manufacturer" means a person or business engaged in the
36 production or processing of seed, seed stock, or any food product.
37 (e) "Medical food" means a food that is formulated to be consumed or
38 administered enterally under the supervision of a physician and that is
39 intended for the specific dietary management of a disease or condition
40 for which distinctive nutritional requirements, based on recognized
41 scientific principles, are established by medical evaluation.
42 (f) "Processed food" means any food other than a raw agricultural
43 commodity, including any food produced from a raw agricultural commodity
44 that has been subject to processing such as canning, smoking, pressing,
45 cooking, freezing, dehydration, fermentation, or milling.
46 (g) "Processing aid" means:
47 (i) a substance that is added to a food during the processing of the
48 food but is removed in some manner from the food before it is packaged
49 in its finished form;
50 (ii) a substance that is added to a food during processing, is
51 converted into constituents normally present in the food, and does not
52 significantly increase the amount of the constituents naturally found in
53 the food; or
54 (iii) a substance that is added to a food for its technical or func-
55 tional effect in the processing but is present in the finished food at
S. 485--B 6
1 insignificant levels and does not have any technical or functional
2 effect in that finished food.
3 (h) For the purposes of paragraph (e) of subdivision fifteen of
4 section two hundred one of this article, "stock-keeping unit" shall mean
5 all of a group of food items of the same brand, quantity of contents,
6 retail price, and variety.
7 (i)"Raw agricultural commodity" means any plant, animal, or fungi
8 grown or produced for human food-use purposes.
9 (j) "Retailer" means a person or business engaged in selling food from
10 individuals or businesses to the end-user.
11 § 4. Section 201 of the agriculture and markets law is amended by
12 adding a new subdivision 15 to read as follows:
13 15. (a) Any food for human consumption, seed, or seed stock offered
14 for retail sale in New York is misbranded if it is entirely genetically
15 engineered or partially produced with genetic engineering and that fact
16 is not disclosed as follows:
17 (i) In the case of a raw agricultural commodity that is not separately
18 packaged or labeled, the words "produced with genetic engineering" or
19 any other derivative of those words, the initials "GE", "GM", or "GMO",
20 or a derivative of those phrases, shall be placed on the container used
21 for packaging, holding, and/or transport in a clear and conspicuous
22 manner by the manufacturer, and maintained by the distributor, and
23 displayed in a clear and conspicuous manner on the retail shelf or bin
24 in which such commodity is offered for sale by the retailer.
25 (ii) In the case of a raw agricultural commodity that is separately
26 packaged or processed food containing some products of genetic engineer-
27 ing, the manufacturer must label the food, in a clear and conspicuous
28 manner on the package of such food, with the words "Produced with Genet-
29 ic Engineering" or any other derivative of those words, the initials
30 "GE", "GM", "GMO", or a derivative of those phrases.
31 (iii) In the case of any seed or seed stock, the manufacturer or other
32 entity responsible for producing the seed must label the seed or seed
33 stock container, the sales receipt, and any other reference to identifi-
34 cation, ownership, or possession, in a clear and conspicuous manner with
35 the words "Produced with Genetic Engineering" or any other derivative of
36 those words, the initials "GE,", "GM", "GMO", or a derivative of those
37 phrases.
38 (b) This subdivision shall not be construed to require either the
39 listing or identification of any ingredients that were genetically engi-
40 neered, nor that the phrase "Produced with Genetic Engineering" or any
41 other derivative of those words, the initials "GE," "GM", "GMO", or a
42 derivative of those phrases be placed immediately preceding any common
43 name or primary product descriptor of a food.
44 (c) Any processed food that would be subject to this section solely
45 because it includes one or more materials produced with genetic engi-
46 neering is not misbranded provided that the genetically engineered mate-
47 rials in the aggregate do not account for more than nine-tenths of one
48 percent of the total weight of the processed food.
49 (d) This subdivision does not apply to any of the following:
50 (i) Food consisting entirely of, or derived entirely from, an animal
51 that has not itself been produced with genetic engineering, regardless
52 of whether the animal has been fed with any food produced with genetic
53 engineering or treated with any drug or vaccine that has been produced
54 with genetic engineering;
55 (ii) A raw agricultural commodity, processed food, or seed that has
56 been grown, raised, produced, or derived without the knowing and inten-
S. 485--B 7
1 tional use of genetically engineered seed or food. To be included within
2 the exclusion under this paragraph, the person or entity responsible for
3 complying with paragraph (a) of this subdivision with respect to a raw
4 agricultural commodity, processed food, seed, or seed stock must obtain,
5 from whomever sold the raw agricultural commodity, processed food, seed,
6 or seed stock must obtain, from whomever sold the raw agricultural
7 commodity, processed food, seed, or seed stock to that person, a written
8 statement, which may be included on an invoice that may be in an elec-
9 tronic form, that the raw agricultural commodity, processed food, seed,
10 or seed stock: (1) has not been knowingly or intentionally produced with
11 genetic engineering; and (2) has been segregated from, and has not been
12 knowingly or intentionally commingled with foods or seeds that may have
13 been produced with genetic engineering;
14 (iii) Any processed food that would be subject to this subdivision
15 solely because one or more of the processing aids or enzymes used in its
16 production were produced with or derived from genetic engineering;
17 (iv) Any alcoholic beverage that is subject to regulation by the alco-
18 holic beverage control law;
19 (v) Food that has been lawfully certified to be labeled, marketed, and
20 offered for sale as "organic" pursuant to the federal Organic Foods
21 Production Act of 1990, 7 U.S.C. 6501, et seq. as amended from time to
22 time, and the National Organic Program regulations promulgated pursuant
23 thereto by the United States Department of Agriculture;
24 (vi) Food that is not packaged for sale and that either: (i) is a
25 processed food prepared and intended for immediate human consumption or
26 (ii) is served, sold, or otherwise provided in any restaurant, food
27 facility, or food retailer that is engaged in the sale of food prepared
28 and intended for immediate human consumption; or
29 (vii) Medical food.
30 (e) Any person or entity who violates the requirements of this section
31 shall be liable for a civil penalty of not more than one thousand
32 dollars, per day, per stock-keeping unit, provided however that no
33 liability shall arise under this section until after said person or
34 entity is given formal notice of the violation.
35 (f) In any case where there has been a final determination by the
36 department, of a violation of any of the provisions of this subdivision,
37 the department shall make available to the public, without charge, the
38 following information:
39 (i) the name and business address of the violator;
40 (ii) the date or dates of inspection of the violator's premises by the
41 department;
42 (iii) the violation that was determined to have occurred, including
43 the name of the product; and
44 (iv) the amount of the penalty that was assessed by the department.
45 (g) A distributor or retailer that sells a raw agricultural commodity,
46 processed food, seed, or seed stock that has been produced with genetic
47 engineering that fails to make the disclosure required pursuant to
48 section three hundred ninety-one-u of the general business law, is not
49 subject to financial liability in any civil action to enforce this
50 section if the distributor or retailer relied on the written statement
51 obtained under subdivision two of section three hundred ninety-one-u of
52 the general business law provided by the manufacturer stating that the
53 raw agricultural commodity, processed food, seed, or seed stock is not
54 subject to the disclosure requirements under such section.
55 § 5. Severability clause. If any provision of this act or its applica-
56 tion to any person, legal entity, or circumstance is held invalid, the
S. 485--B 8
1 remainder of the act or the application of the provision to other
2 persons, legal entity or circumstances shall not be affected.
3 § 6. This act shall take effect twenty-four months after it shall have
4 become a law; provided, however, that effective immediately, the depart-
5 ment of agriculture and markets shall adopt any rules and regulations
6 necessary to implement this act, including, but not limited to, creating
7 and maintaining a list, which shall be made available to the public at
8 no cost, of raw agricultural commodities that are produced with genetic
9 engineering; provided, further, that the department of agriculture and
10 markets is not authorized to create any exemptions beyond those provided
11 for in paragraph (d) of subdivision 2 of section 391-u of the general
12 business law as added by section two of this act and paragraph (d) of
13 subdivision 15 of section 201 of the agriculture and markets law as
14 added by section four of this act; this act shall remain in effect until
15 such time as a comprehensive federal system requiring mandatory labeling
16 of raw agricultural commodities, processed foods, seed, and seed stock
17 produced with genetic engineering is implemented, provided however that
18 nothing contained herein shall prevent the state from exercising any
19 concurrent authority authorized by federal law; provided that the
20 commissioner of agriculture and markets shall notify the legislative
21 bill drafting commission upon the occurrence of the enactment of a
22 comprehensive federal system requiring mandatory labeling of raw agri-
23 cultural commodities, processed foods, seed, and seed stock produced
24 with genetic engineering in order that the commission may maintain an
25 accurate and timely effective data base of the official text of the laws
26 of the state of New York in furtherance of effectuating the provisions
27 of section 44 of the legislative law and section 70-b of the public
28 officers law.
