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
________________________________________________________________________
2072
2017-2018 Regular Sessions
IN SENATE
January 12, 2017
___________
Introduced by Sens. LAVALLE, ADDABBO, BOYLE, BRESLIN, MONTGOMERY, MURPHY
-- read twice and ordered printed, and when printed to be committed to
the Committee on Consumer Protection
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;
17 (d) A variety of genetically engineered crops are commercially culti-
18 vated and sold in the United States, including corn, canola, sugar
19 beets, soybean, cotton, alfalfa, and papaya. It has been estimated that
20 70-80% of packaged grocery products contain some materials derived from
21 these genetically engineered crops;
22 (e) Without disclosure, consumers with certain dietary restrictions
23 may unknowingly consume such food in violation of such dietary
24 restrictions;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05350-01-7
S. 2072 2
1 (f) Preserving the identity, quality, and reliability of agricultural
2 products is of prime importance to our state's fiscal health;
3 (g) The cultivation of genetically engineered crops can cause serious
4 environmental impacts;
5 (h) It is the intent of this act to ensure that New York consumers and
6 farmers are fully and reliably informed about whether the food and seed
7 they purchase and eat were produced with genetic engineering so they may
8 choose for themselves whether to purchase and eat or use such food and
9 seed;
10 (i) It is the intent of this act only to regulate the labeling of
11 seed, seed stock, and food for human consumption offered for retail sale
12 within New York State.
13 § 2. The general business law is amended by adding a new section 391-u
14 to read as follows:
15 § 391-u. Genetically engineered foods; required labeling. 1. Defi-
16 nitions. As used in this section, the term:
17 (a) "Department" means the state department of agriculture and
18 markets.
19 (b) "Distributor" means a person or business engaged in any method of
20 distributing or transporting a food or food product from one place to
21 another.
22 (c) "Enzyme" means a protein that catalyzes chemical reactions of
23 other substances without itself being destroyed or altered upon
24 completion of the reactions.
25 (d) "Genetically engineered," or "genetically modified," or any deriv-
26 ative of those words, as applied to any food for human consumption or
27 seed means produced from or with an organism or organisms with genetics
28 altered materially through the application of:
29 (i) in vitro nucleic acid techniques, including but not limited to
30 recombinant deoxyribonucleic acid (DNA) techniques and the direct
31 injection of nucleic acid into cells or organelles; or
32 (ii) the fusion of cells beyond the taxonomic family that overcomes
33 natural physiological, reproductive, or recombinant barriers and that
34 are not techniques used in traditional breeding and selection.
35 For purposes of subparagraph (i) of this paragraph, "in vitro nucleic
36 acid techniques" include, but are not limited to, recombinant DNA or RNA
37 techniques that use vector systems, and techniques involving the direct
38 introduction into the organisms of hereditary materials prepared outside
39 the organisms such as biolistics, microinjection, macro-injection,
40 chemoporation, electroporation, microencapsulation, and liposome fusion.
41 (e) "Manufacturer" means a person or business engaged in the
42 production or processing of seed, seed stock, or any food product.
43 (f) "Medical food" means a food that is formulated to be consumed or
44 administered enterally under the supervision of a physician and that is
45 intended for the specific dietary management of a disease or condition
46 for which distinctive nutritional requirements, based on recognized
47 scientific principles, are established by medical evaluation.
48 (g) "Processed food" means any food other than a raw agricultural
49 commodity, including any food produced from a raw agricultural commodity
50 that has been subject to processing such as canning, smoking, pressing,
51 cooking, freezing, dehydration, fermentation, or milling.
52 (h) "Processing aid" means:
53 (i) a substance that is added to a food during the processing of the
54 food but is removed in some manner from the food before it is packaged
55 in its finished form;
S. 2072 3
1 (ii) a substance that is added to a food during processing, is
2 converted into constituents normally present in the food, and does not
3 significantly increase the amount of the constituents naturally found in
4 the food; or
5 (iii) a substance that is added to a food for its technical or func-
6 tional effect in the processing but is present in the finished food at
7 insignificant levels and does not have any technical or functional
8 effect in that finished food.
9 (i) "Stock-keeping unit," for purposes of subdivision three of this
10 section, shall mean all of a group of food items of the same brand,
11 quantity of contents, retail price, and variety.
12 (j) "Raw agricultural commodity" means any plant, animal, or fungi
13 grown or produced for human food-use purposes.
14 (k) "Retailer" means a person or business engaged in selling food from
15 individuals or businesses to the end-user.
16 2. Labeling of genetically engineered seed and food. (a) Any food for
17 human consumption, seed, or seed stock offered for retail sale in New
18 York is misbranded if it is entirely genetically engineered or partially
19 produced with genetic engineering and that fact is not disclosed as
20 follows:
21 (i) In the case of a raw agricultural commodity that is not separately
22 packaged or labeled, the words "Produced with Genetic Engineering" or
23 any other derivative of those words, the initials "GE", "GM", or "GMO",
24 or a derivative of those phrases, shall be placed on the container used
25 for packaging, holding, and/or transport in a clear and conspicuous
26 manner by the manufacturer, and maintained by the distributor, and
27 displayed in a clear and conspicuous manner on the retail store shelf or
28 bin in which such commodity is offered for sale by the retailer.
29 (ii) In the case of a raw agricultural commodity that is separately
30 packaged or processed food containing some products of genetic engineer-
31 ing, the manufacturer must label the food, in a clear and conspicuous
32 manner on the package of such food, with the words "Produced with Genet-
33 ic Engineering" or any other derivative of those words, the initials
34 "GE", "GM", "GMO", or a derivative of those phrases.
35 (iii) In the case of any seed or seed stock, the manufacturer or other
36 entity responsible for producing the seed must label the seed or seed
37 stock container, the sales receipt, and any other reference to identifi-
38 cation, ownership, or possession, in a clear and conspicuous manner with
39 the words "Produced with Genetic Engineering" or any other derivative of
40 those words, the initials "GE", "GM", "GMO", or a derivative of those
41 phrases.
42 (b) This section shall not be construed to require either the listing
43 or identification of any ingredients that were genetically engineered,
44 nor that the phrase "Produced with Genetic Engineering" or any other
45 derivative of those words, the initials "GE", "GM", "GMO", or a deriva-
46 tive of those phrases be placed immediately preceding any common name or
47 primary product descriptor of a food.
48 (c) Any processed food that would be subject to this section solely
49 because it includes one or more materials produced with genetic engi-
50 neering is not misbranded provided that the genetically engineered mate-
51 rials in the aggregate do not account for more than nine-tenths of one
52 percent of the total weight of the processed food.
53 (d) This subdivision does not apply to any of the following:
54 (i) Food consisting entirely of, or derived entirely from, an animal
55 that has not itself been produced with genetic engineering, regardless
56 of whether the animal has been fed with any food produced with genetic
S. 2072 4
1 engineering or treated with any drug or vaccine that has been produced
2 with genetic engineering;
3 (ii) A raw agricultural commodity, processed food, or seed that has
4 been grown, raised, produced, or derived without the knowing and inten-
5 tional use of genetically engineered seed or food. To be included within
6 the exclusion under this paragraph, the person or entity responsible for
7 complying with this subdivision with respect to a raw agricultural
8 commodity, processed food, seed, or seed stock must obtain, from whomev-
9 er sold the raw agricultural commodity, processed food, seed, or seed
10 stock to that person, a written statement, which may be included on an
11 invoice that may be in an electronic form, that the raw agricultural
12 commodity, processed food, seed, or seed stock: (1) has not been know-
13 ingly or intentionally produced with genetic engineering; and (2) has
14 been segregated from, and has not been knowingly or intentionally
15 commingled with foods or seeds that may have been produced with genetic
16 engineering;
17 (iii) Any processed food that would be subject to this section solely
18 because one or more of the processing aids or enzymes used in its
19 production were produced with or derived from genetic engineering;
20 (iv) Any alcoholic beverage that is subject to regulation by the alco-
21 holic beverage control law;
22 (v) Food that has been lawfully certified to be labeled, marketed, and
23 offered for sale as "organic" pursuant to the federal Organic Foods
24 Production Act of 1990, 7 U.S.C. 6501, et seq. as amended from time to
25 time, and the National Organic Program regulations promulgated pursuant
26 thereto by the United States Department of Agriculture;
27 (vi) Food that is not packaged for sale and that either: (i) is a
28 processed food prepared and intended for immediate human consumption or
29 (ii) is served, sold, or otherwise provided in any restaurant, food
30 facility, or food retailer that is engaged in the sale of food prepared
31 and intended for immediate human consumption; or
32 (vii) Medical food.
33 3. Violation. Any person or entity who violates the requirements of
34 this section shall be liable for a civil penalty of not more than one
35 thousand dollars, per day, per stock-keeping unit, provided however that
36 no liability shall arise under this section until after said person or
37 entity is given formal notice of the violation.
38 4. Notice of violation. In any case where there has been a final
39 determination by the department, of a violation of any of the provisions
40 of this section, the department shall make available to the public,
41 without charge, the following information:
42 (a) the name and business address of the violator;
43 (b) the date or dates of inspection of the violator's premises by the
44 department;
45 (c) the violation that was determined to have occurred, including the
46 name of the product; and
47 (d) the amount of the penalty that was assessed by the department.
48 5. Third-party protection; reliance on written statement. A distribu-
49 tor or retailer that sells a raw agricultural commodity, processed food,
50 seed, or seed stock that has been produced with genetic engineering that
51 fails to make the disclosure required pursuant to subdivision two of
52 this section, is not subject to financial liability in any civil action
53 to enforce this section if the distributor or retailer relied on the
54 written statement obtained under subdivision two of this section
55 provided by the manufacturer stating that the raw agricultural commod-
S. 2072 5
1 ity, processed food, seed, or seed stock is not subject to the disclo-
2 sure requirements under this section.
3 § 3. Section 198 of the agriculture and markets law is amended by
4 adding a new subdivision 12 to read as follows:
5 12. The term: (a) "Distributor" means a person or business engaged in
6 any method of distributing or transporting a food or food product from
7 one place to another.
8 (b) "Enzyme" means a protein that catalyzes chemical reactions of
9 other substances without itself being destroyed or altered upon
10 completion of the reactions.
11 (c) "Genetically engineered," or "genetically modified," or any deriv-
12 ative of those words, as applied to any food for human consumption or
13 seed means produced from or with an organism or organisms with genetics
14 altered materially through the application of:
15 (i) in vitro nucleic acid techniques, including but not limited to
16 recombinant deoxyribonucleic acid (DNA) techniques and the direct
17 injection of nucleic acid into cells or organelles; or
18 (ii) the fusion of cells beyond the taxonomic family that overcomes
19 natural physiological, reproductive, or recombinant barriers and that
20 are not techniques used in traditional breeding and selection.
21 For purposes of subparagraph (i) of this paragraph, "in vitro nucleic
22 acid techniques" include, but are not limited to, recombinant DNA or RNA
23 techniques that use vector systems and techniques involving the direct
24 introduction into the organisms of hereditary materials prepared outside
25 the organisms such as biolistics, microinjection, macro-injection,
26 chemoporation, electroporation, microencapsulation, and liposome fusion.
27 (d) "Manufacturer" means a person or business engaged in the
28 production or processing of seed, seed stock, or any food product.
29 (e) "Medical food" means a food that is formulated to be consumed or
30 administered enterally under the supervision of a physician and that is
31 intended for the specific dietary management of a disease or condition
32 for which distinctive nutritional requirements, based on recognized
33 scientific principles, are established by medical evaluation.
34 (f) "Processed food" means any food other than a raw agricultural
35 commodity, including any food produced from a raw agricultural commodity
36 that has been subject to processing such as canning, smoking, pressing,
37 cooking, freezing, dehydration, fermentation, or milling.
38 (g) "Processing aid" means:
39 (i) a substance that is added to a food during the processing of the
40 food but is removed in some manner from the food before it is packaged
41 in its finished form;
42 (ii) a substance that is added to a food during processing, is
43 converted into constituents normally present in the food, and does not
44 significantly increase the amount of the constituents naturally found in
45 the food; or
46 (iii) a substance that is added to a food for its technical or func-
47 tional effect in the processing but is present in the finished food at
48 insignificant levels and does not have any technical or functional
49 effect in that finished food.
50 (h) For the purposes of paragraph (e) of subdivision fifteen of
51 section two hundred one of this article, "stock-keeping unit" shall mean
52 all of a group of food items of the same brand, quantity of contents,
53 retail price, and variety.
54 (i)"Raw agricultural commodity" means any plant, animal, or fungi
55 grown or produced for human food-use purposes.
S. 2072 6
1 (j) "Retailer" means a person or business engaged in selling food from
2 individuals or businesses to the end-user.
3 § 4. Section 201 of the agriculture and markets law is amended by
4 adding a new subdivision 15 to read as follows:
5 15. (a) Any food for human consumption, seed, or seed stock offered
6 for retail sale in New York is misbranded if it is entirely genetically
7 engineered or partially produced with genetic engineering and that fact
8 is not disclosed as follows:
9 (i) In the case of a raw agricultural commodity that is not separately
10 packaged or labeled, the words "produced with genetic engineering" or
11 any other derivative of those words, the initials "GE", "GM", or "GMO",
12 or a derivative of those phrases, shall be placed on the container used
13 for packaging, holding, and/or transport in a clear and conspicuous
14 manner by the manufacturer, and maintained by the distributor, and
15 displayed in a clear and conspicuous manner on the retail shelf or bin
16 in which such commodity is offered for sale by the retailer.
17 (ii) In the case of a raw agricultural commodity that is separately
18 packaged or processed food containing some products of genetic engineer-
19 ing, the manufacturer must label the food, in a clear and conspicuous
20 manner on the package of such food, with the words "Produced with Genet-
21 ic Engineering" or any other derivative of those words, the initials
22 "GE", "GM", "GMO", or a derivative of those phrases.
23 (iii) In the case of any seed or seed stock, the manufacturer or other
24 entity responsible for producing the seed must label the seed or seed
25 stock container, the sales receipt, and any other reference to identifi-
26 cation, ownership, or possession, in a clear and conspicuous manner with
27 the words "Produced with Genetic Engineering" or any other derivative of
28 those words, the initials "GE,", "GM", "GMO", or a derivative of those
29 phrases.
30 (b) This subdivision shall not be construed to require either the
31 listing or identification of any ingredients that were genetically engi-
32 neered, nor that the phrase "Produced with Genetic Engineering" or any
33 other derivative of those words, the initials "GE," "GM", "GMO", or a
34 derivative of those phrases be placed immediately preceding any common
35 name or primary product descriptor of a food.
36 (c) Any processed food that would be subject to this section solely
37 because it includes one or more materials produced with genetic engi-
38 neering is not misbranded provided that the genetically engineered mate-
39 rials in the aggregate do not account for more than nine-tenths of one
40 percent of the total weight of the processed food.
41 (d) This subdivision does not apply to any of the following:
42 (i) Food consisting entirely of, or derived entirely from, an animal
43 that has not itself been produced with genetic engineering, regardless
44 of whether the animal has been fed with any food produced with genetic
45 engineering or treated with any drug or vaccine that has been produced
46 with genetic engineering;
47 (ii) A raw agricultural commodity, processed food, or seed that has
48 been grown, raised, produced, or derived without the knowing and inten-
49 tional use of genetically engineered seed or food. To be included within
50 the exclusion under this paragraph, the person or entity responsible for
51 complying with paragraph (a) of this subdivision with respect to a raw
52 agricultural commodity, processed food, seed, or seed stock must obtain,
53 from whomever sold the raw agricultural commodity, processed food, seed,
54 or seed stock must obtain, from whomever sold the raw agricultural
55 commodity, processed food, seed, or seed stock to that person, a written
56 statement, which may be included on an invoice that may be in an elec-
S. 2072 7
1 tronic form, that the raw agricultural commodity, processed food, seed,
2 or seed stock: (1) has not been knowingly or intentionally produced with
3 genetic engineering; and (2) has been segregated from, and has not been
4 knowingly or intentionally commingled with foods or seeds that may have
5 been produced with genetic engineering;
6 (iii) Any processed food that would be subject to this subdivision
7 solely because one or more of the processing aids or enzymes used in its
8 production were produced with or derived from genetic engineering;
9 (iv) Any alcoholic beverage that is subject to regulation by the alco-
10 holic beverage control law;
11 (v) Food that has been lawfully certified to be labeled, marketed, and
12 offered for sale as "organic" pursuant to the federal Organic Foods
13 Production Act of 1990, 7 U.S.C. 6501, et seq. as amended from time to
14 time, and the National Organic Program regulations promulgated pursuant
15 thereto by the United States Department of Agriculture;
16 (vi) Food that is not packaged for sale and that either: (i) is a
17 processed food prepared and intended for immediate human consumption or
18 (ii) is served, sold, or otherwise provided in any restaurant, food
19 facility, or food retailer that is engaged in the sale of food prepared
20 and intended for immediate human consumption; or
21 (vii) Medical food.
22 (e) Any person or entity who violates the requirements of this section
23 shall be liable for a civil penalty of not more than one thousand
24 dollars, per day, per stock-keeping unit, provided however that no
25 liability shall arise under this section until after said person or
26 entity is given formal notice of the violation.
27 (f) In any case where there has been a final determination by the
28 department, of a violation of any of the provisions of this subdivision,
29 the department shall make available to the public, without charge, the
30 following information:
31 (i) the name and business address of the violator;
32 (ii) the date or dates of inspection of the violator's premises by the
33 department;
34 (iii) the violation that was determined to have occurred, including
35 the name of the product; and
36 (iv) the amount of the penalty that was assessed by the department.
37 (g) A distributor or retailer that sells a raw agricultural commodity,
38 processed food, seed, or seed stock that has been produced with genetic
39 engineering that fails to make the disclosure required pursuant to
40 section three hundred ninety-one-u of the general business law, is not
41 subject to financial liability in any civil action to enforce this
42 section if the distributor or retailer relied on the written statement
43 obtained under subdivision two of section three hundred ninety-one-u of
44 the general business law provided by the manufacturer stating that the
45 raw agricultural commodity, processed food, seed, or seed stock is not
46 subject to the disclosure requirements under such section.
47 § 5. Severability clause. If any provision of this act or its applica-
48 tion to any person, legal entity, or circumstance is held invalid, the
49 remainder of the act or the application of the provision to other
50 persons, legal entity or circumstances shall not be affected.
51 § 6. This act shall take effect twenty-four months after it shall have
52 become a law; provided, however, that effective immediately, the depart-
53 ment of agriculture and markets shall adopt any rules and regulations
54 necessary to implement this act, including, but not limited to, creating
55 and maintaining a list, which shall be made available to the public at
56 no cost, of raw agricultural commodities that are produced with genetic
S. 2072 8
1 engineering; provided, further, that the department of agriculture and
2 markets is not authorized to create any exemptions beyond those provided
3 for in paragraph (d) of subdivision 2 of section 391-u of the general
4 business law as added by section two of this act and paragraph (d) of
5 subdivision 15 of section 201 of the agriculture and markets law as
6 added by section four of this act; this act shall remain in effect until
7 such time as a comprehensive federal system requiring mandatory labeling
8 of raw agricultural commodities, processed foods, seed, and seed stock
9 produced with genetic engineering is implemented, provided however that
10 nothing contained herein shall prevent the state from exercising any
11 concurrent authority authorized by federal law; provided that the
12 commissioner of agriculture and markets shall notify the legislative
13 bill drafting commission upon the occurrence of the enactment of a
14 comprehensive federal system requiring mandatory labeling of raw agri-
15 cultural commodities, processed foods, seed, and seed stock produced
16 with genetic engineering in order that the commission may maintain an
17 accurate and timely effective data base of the official text of the laws
18 of the state of New York in furtherance of effectuating the provisions
19 of section 44 of the legislative law and section 70-b of the public
20 officers law.
