As the days grow longer and the snow starts to melt, so, too, does the debate on genetically modified organism (GMO) labeling begin to heat up. This is because Vermont’s Genetically Engineered Food Labeling Act—which requires that food entirely or partially produced with genetic engineering and offered for retail sale in Vermont be labeled as such—goes into effect on July 1, 2016. The Vermont law and others like it are born out of a desire by consumers to have knowledge about the content of their food when making purchasing decisions. Understanding the law and its accompanying regulation for purposes of compliance is critical for several reasons.
First, the entity responsible for making the label disclosures is dependent on whether the food is packaged or unpackaged. For unpackaged raw agricultural commodities and processed food, retailers are responsible for posting a label disclosing the presence of genetic engineering on associated signage or on the bin, shelf, or container where the food is displayed. For packaged food produced with genetic engineering, manufacturers are responsible for making the necessary disclosures on the package’s label.
Second, certain foods are exempt from the law’s labeling requirements, despite containing or possibly containing genetically engineered material. For example, foods consisting entirely of or derived entirely from an animal that is itself not produced with genetic engineering, regardless of whether the animal has been fed or injected with any food, drug, or other substance produced with genetic engineering, are exempt. This means that all animal products, including processed dairy products, are exempt, unless the product requires labeling because of additional ingredients (e.g., ice cream produced with genetically engineered sugar). Other items exempt from the law’s labeling requirements include products whose labels are subject to approval by the USDA, foods that include one or more processing aids or enzymes produced with genetic engineering, alcoholic beverages, foods with minimal genetically engineered content (less than 0.9% of the total weight of the food), food that has been certified as organic, food sold in restaurants for immediate consumption, and medical food.
Third, the law specifies the manner in which covered entities must make the required disclosures. For packaged and unpackaged raw agricultural commodities and unpackaged processed food, disclosures must be “clear and conspicuous,” so that they are readily noticed and understood by consumers. For packaged processed food, disclosures must be “easily read” and “easily found.” As a rule of thumb, the disclosures should be no smaller than the size of the words “Serving Size” on the Nutrition Facts label or the Ingredient List. Further, covered entities are required to retain records to demonstrate their compliance with the law—three years from the date of the sale of the food for manufacturers, and one year from the date of sale for retailers. Failure to comply with the law can result in steep penalties—as high as $1,000.00 per day, per product.
By and large, the food industry has opposed Vermont’s Act 120 and other state GMO labeling laws, arguing that a state-by-state approach will lead to a patchwork of confusing and costly state labeling mandates that will result in increased food costs for families across the nation. So far, efforts to block the law’s implementation by way of litigation have been unsuccessful. In 2014, a coalition of trade associations sought a preliminary injunction to prohibit the Vermont labeling law from taking effect. The preliminary injunction was denied, and the plaintiffs appealed. The case is still pending a decision.
In the meantime, where efforts to block the Vermont law at the judicial level have as-of-yet proven ineffective, similar efforts at the federal legislative level have gained traction. On March 1, 2016, the Senate Agriculture Committee approved a bill that expressly preempts state GMO labeling laws and requires the Secretary of Agriculture to establish a national, voluntary labeling standard for genetically engineered food. This bill is similar to one passed by the House in July 2015 (Safe and Accurate Food Labeling Act) that likewise seeks to preempt all state and local requirements for the labeling of GMO products while creating voluntary, national standards for such labeling. The day after the introduction of the Senate Agriculture Committee bill, a competing group of senators introduced the Biotechnology Food Labeling and Uniformity Act, which, if enacted, would also preempt state GMO labeling laws but would make the disclosure of the presence of genetically modified ingredients on food labels mandatory. While lawmakers seem to agree that a federal standard is preferable to a hodgepodge of labeling laws passed by the 50 states, they so far cannot agree on whether disclosure of genetically modified food on labels should be required.
While it is possible that judicial or legislative action over the next few months could result in the blockage of the Vermont GMO labeling law, time is not on manufacturers’ and retailers’ side. In the interim, manufacturers and retailers who sell food with genetic engineering in Vermont and who wish to err on the side of caution should plan for compliance by the July 1 effective date.