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Alaska Passes Law Requiring Mandatory Labeling of Genetically Engineered Fish

Bill requires labeling genetically altered fish By HAL SPENCE Peninsula Clarion (Alaska)

Genetically altered fish will need to be labeled as such when products are to be sold in Alaska.

That's the effect of Senate Bill 25, sponsored by Sen. Gary Stevens, R-Kodiak, and Sen. Kim Elton, D-Juneau. The Alaska House approved the measure unanimously Monday. It had previously won unanimous support in the Senate.

Known as the "Frankenfish" bill, the measure is headed for the governor's desk.

"The message that Alaska seafood is more natural than seafood that has been engineered in a lab is a highly important marketing tool," Stevens said. "This bill helps highlight Alaska seafood as distinct from genetically modified seafood, doing away with any vagueness that may exist to the consumer when purchasing seafood without labeling, and reinforcing the natural message."

Prompting lawmakers to pass Senate Bill 25 was the fact that the U.S. Food and Drug Administration is considering an application by an aquaculture company to sell a genetically modified, growth-enhanced salmon. According to a press release from Elton's office, Atlantic salmon are expected to be the first species slated for genetic modification, but catfish, tilapia and others would follow.

Meanwhile, according to the Pacific Fisheries Legislative Task Force, a biotech company called Aqua Bounty has sought Canadian approval to use genetically modified fish in Canada's fish farms, Elton said.

"I am encouraged by the bipartisan support this bill received," he said. "It is a sign that, when it comes to seafood, Alaskans stand up for informed consumers and friends and neighbors working in the wild fish industry." According to Stevens and Elton, legislation requiring labeling genetically modified fish products already exists in the European Union, Japan, New Zealand and Australia. SB 25 is similar to legislation introduced in Oregon and California.

The bill requires Alaska retailers to identify and label foods containing fish and shellfish, or fish and shellfish products, which have been genetically modified.

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Journal Text for SB25 in the 24th Legislature

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05-02-2005 House Journal 1445 SB 25

The following was read the second time:

SENATE BILL NO. 25
"An Act relating to labeling and identification of genetically modified fish and fish products."

Representative Coghill moved and asked unanimous consent that SB 25 be considered engrossed, advanced to third reading, and placed on final passage. There being no objection, it was so ordered.

SB 25 was read the third time.

The question being: "Shall SB 25 pass the House?" The roll was taken with the following result:

SB 25 Third Reading Final Passage

YEAS: 32 NAYS: 0 EXCUSED: 0 ABSENT: 8

Yeas: Berkowitz, Chenault, Cissna, Coghill, Crawford, Croft,
Dahlstrom, Elkins, Foster, Gara, Gardner, Gatto, Gruenberg, Guttenberg, Harris, Hawker, Kerttula, Kohring, Kott, LeDoux, Lynn, McGuire, Neuman, Olson, Ramras, Salmon, Samuels, Seaton, Stoltze, Thomas, Weyhrauch, Wilson

05-02-2005 House Journal 1446
Absent: Anderson, Holm, Joule, Kapsner, Kelly, Meyer, Moses,
Rokeberg

And so, SB 25 passed the House, was signed by the Speaker and Chief Clerk and returned to the Senate.

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BILL ID: SB 25

SENATE BILL NO. 25
"An Act relating to labeling and identification of genetically modified fish and fish products."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:

* Section 1. AS 17.20.040 is amended to read:
Sec. 17.20.040. Misbranded foods. (a) Food is misbranded if

(1) its labeling is false or misleading in any particular;

(2) it is offered for sale under the name of another food;

(3) it is an imitation of another food, unless its label bears, in type of uniform size and prominence, the word "imitation" and, immediately thereafter, the name of the food imitated;

(4) its container is made, formed, or filled so as to be misleading;

(5) it is in package form unless it bears a label containing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; however, under (B) of this paragraph, reasonable variations are permitted, and exemptions for small packages shall be established by regulations prescribed by the department;

(6) a word, statement, or other information required by or under authority of this chapter to appear on the label or labeling is not prominently placed with the conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in terms that make it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;

(7) it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by AS 17.20.010, unless (A) it conforms to the definition and standard, and (B) its label bears the name of the food specified in the definition and standard and the common names of optional ingredients other than spices, flavoring, and coloring present in the food as required by regulation;

(8) it purports to be or is represented as (A) a food for which a standard of quality has been prescribed by regulations, and its quality falls below that standard, unless its label bears, in the manner and form the regulations specify, a statement that it falls below that standard; or (B) a food for which a standard of fill of container has been prescribed by regulation as provided by AS 17.20.010 and it falls below the applicable standard of fill of container, unless its label bears, in the manner and form as the regulations specify, a statement that it falls below that standard;

(9) it is not subject to the provisions of (7) of this subsection, unless it bears labeling clearly giving (A) the common or usual name of the food, if any, and (B) in case it is fabricated from two or more ingredients, the common or usual name of each ingredient; except that, however, spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; however, to the extent that compliance with the requirements of (B) of this paragraph is impracticable, or results in deception or unfair competition, exemptions shall be established by regulations adopted by the department, but the requirements of (B) of this paragraph do not apply to food products that are packaged at the direction of purchasers at retail at the time of sale, the ingredients of which are disclosed to the purchasers by other means in accordance with regulations adopted by the department;

(10) it purports to be or is represented for special dietary uses, unless its label bears information concerning its vitamin, mineral, and other dietary properties the commissioner determines to be, and by regulations prescribes as, necessary in order fully to inform purchasers as to its value for those uses;

(11) it bears or contains artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; however, to the extent that compliance with the requirements of this paragraph is impracticable, exemption shall be established by regulations adopted by the department;

(12) the food is a farmed halibut, salmon, or sablefish product, unless (A) the product is labeled to identify the product as farmed fish raised outside the state, if the product is sold in a packaged form; or

(B) the product is conspicuously identified as farmed fish raised outside the state, if the product is sold in an unpackaged form;

(13) the labeling, advertisement, or identification of the food is inconsistent with the labeling, advertisement, or identification provisions of AS 17.20.048 or 17.20.049;

(14) the food is a genetically modified fish or genetically modified fish product unless
(A) the food is conspicuously labeled to identify the fish or fish product as a genetically modified fish or fish product if the fish or fish product is sold in a packaged form; or
(B) the food is conspicuously identified as a genetically modified fish or fish product if the fish or fish product is sold in an unpackaged form. (b) In [(a)(12) OF] this section,
(1) "farmed halibut, salmon, or sablefish product" means a food product that contains halibut, salmon, or sablefish that is propagated, farmed, or cultivated in a facility that grows, farms, or cultivates finfish in captivity or under positive control but that is not a salmon hatchery that is owned by the state or that holds a salmon hatchery permit under AS 16.10.400; in this paragraph [SUBSECTION], "positive control" has the meaning given in AS 16.40.199; (2) "genetically modified fish" means (A) a finfish or shellfish whose genetic structure has been altered at the molecular level by means that are not possible under natural conditions or processes, including recombinant DNA and RNA
techniques, cell fusion, gene deletion or doubling, introduction of exogenous genetic
08 material, alteration of the position of a gene, or similar procedure; (B) the progeny of a finfish or shellfish described in (A) of this paragraph; (3) "genetically modified fish product" means a product prepared from a genetically modified fish.
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COMMENTS FROM BIO OPPOSING THE LABELING LEGISLATION

Testimony Opposing Senate Bill 25
"An Act relating to labeling and identification of genetically modified fish and fish products" Submitted by the Biotechnology Industry Organization to the Alaska House Labor & Commerce Committee April 4, 2005 On behalf of the Biotechnology Industry Organization (BIO), we appreciate the opportunity to submit testimony in opposition to Senate Bill 25, "An Act relating to labeling and identification of genetically modified fish and fish products." BIO strongly supports existing federal requirements for accurate and informative food labels. These labeling requirements communicate information that is relevant to health, safety and nutrition of all food products sold in the United States. State-based labeling requirements that differ from previously established, stringently enforced federal guidelines, provide no value for consumers and only serve to disparage biotechnology foods. In addition, Senate Bill 25 is contrary to existing Alaska state law that calls for conformity with federal food labeling guidelines.

The requirements of Senate Bill 25 contradict existing Alaska state and federal laws. Title 17 of Alaska Statute Law (Sec. 17.20.010) states, "the definitions and standards adopted [by the State] shall conform as far as practicable to the definitions and standards adopted under authority of the Federal Food Drug and Cosmetic Act (FDCA)." The U.S. Food and Drug Administration (FDA) does not require labeling of foods derived from biotechnology (genetically modified food) unless that food differs significantly in terms of safety, nutrition, how the food is used, or the consequences of its use. Senate Bill 25 would establish a threshold for labeling that does not exist in federal statute.

The U.S. Food & Drug Administration's labeling guidance requires that a food label must reveal all material facts about that food. For instance, the FDCA requires that if a biotech food differs significantly from a conventional food in its nutritional or allergenic properties that fact must be disclosed on the label. The FDA has taken a science-based approach in developing this guidance and decided biotech foods do not inherently "present any different or greater safety concern than foods developed by [conventional methods]." FDA uses the principal of "substantial equivalence"-focusing on the final product, not the process used to develop a food product, to determine how it should be labeled. In addition, mandatory labeling requirements that vary from state-to-state would not only conflict with FDA guidelines, but would be costly and confusing to consumers.

Proposals similar to Senate Bill 25 have been struck-down in federal court. In 1996, the Second Circuit Court of Appeals overturned a Vermont law requiring the labeling of milk products from cows treated with biotechnology-derived growth hormone. The Court ruled mandatory labeling of this kind to be unconstitutional forced speech. Following that decision, a number of states, including Alaska (Alaska Stat. § 17.20.013), adopted laws to regulate the voluntary labeling for milk from cows that were not treated with growth hormones. Consistent with FDA policy, these voluntary labeling guidelines require that such labels clearly state that no significant difference has been shown between milk derived from cows that are treated with the growth hormone and those that are not.

Senate Bill 25 proposes a solution to a situation that does not yet exist in Alaska, or in any state. There has yet to be single biotech fish product approved for human consumption by the FDA. Therefore, this legislation proposes to regulate a food product that does not yet exist. Alaska should not preempt federal decision-making on this issue. Rather, if sellers of conventionally-bred fish wish to label their products as such, they are free to do so in a truthful and non-misleading way according to FDA guidelines www.cfsan.fda.gov/lrd/biotechm.html#label). Alaska should not force fish breeders to make disclosures that FDA has deemed are not relevant to the health and safety of consumers.

We strongly encourage the House Labor and Commerce Committee members to oppose Senate Bill 25. If you have any questions or would like additional information on this topic, please feel free to contact Patrick Kelly at 202-962-9503 pkelly@bio.org or Dr. Barbara Glenn, Director of Animal Biotechnology at 202-962-6697 bglenn@bio.org. Thank you for your consideration of this important matter.

Respectfully submitted, Patrick M. Kelly Vice President State Government Relations Biotechnology Industry Organization