Tag: Legal

On July 1, 2016, a law will go into effect in Vermont that promises to impact Americans in all 50 states.  It is Act 120, a labeling law requiring food manufacturers to disclose the presence or possible presence of GMOs in their products.

Obviously, big food companies can’t easily tailor their food labels to the specifications of different states.  This means all of us may be seeing Vermont-style GMO labels on boxes and cans at the grocery store in short order.

 

Vermont’s GMO Labeling Law At a Glance

Starting on July 1, foods available for retail sale in Vermont must comply with the following regulations if they are entirely or partly produced through genetic engineering:

• Packaged raw commodities must be labeled “produced with genetic engineering.”
• Unpackaged raw commodities must be kept on a shelf or in a bin labeled “produced with genetic engineering.”
• Processed foods must be labeled “partially produced with genetic engineering,” “may be produced with genetic engineering,” or “produced with genetic engineering,” depending on the information available to the manufacturer and on the quantity of genetically engineered ingredients relative to the whole product.

Manufacturers are not required to specify which ingredients are genetically engineered.

Applying a sticker, stamp, or additional printed text to an existing package is considered an acceptable way to comply with the law.

Foods that have been entirely or partly produced through genetic engineering may not be labeled or advertised as “natural,” “naturally made,” “naturally grown,” “all natural,” etc.

The following foods are exempted from the GMO labeling requirements under Act 120:

• Foods derived entirely from animals that were not genetically engineered, even if those animals were fed or treated with GMOs.
• Processed foods containing meat or poultry that must be approved by the USDA.
• Processed foods that contain processing aids or enzymes (such as rennet used to make cheese) produced through genetic engineering, but are otherwise GMO-free.
• Processed foods with genetically engineered materials making up less than 1% of the product by weight.
• Alcoholic beverages regulated under Vermont laws.
• Medical foods.
• Foods sold at restaurants and similar establishments.

The labeling requirement only applies to foods sold at physical retail locations within the state of Vermont.  It does not apply to Internet-only sales.

Improperly labeled food cannot be offered for retail sale after July 1.  However, because some foods have long shelf lives, improperly labeled foods will be given the benefit of the doubt until January 1, 2017, unless there is evidence that they were packaged on or after July 1.

The penalty for violating Act 120 is up to $1,000 per day per uniquely named, designated, or marketed product—not per package.  However, violators will be given 30 days to correct the problem before being fined.

 

Background

Vermont became the first state in the nation to require GMO labeling on food products when Act 120 was signed into law by Vermont Governor Peter Shumlin on May 8, 2014.

About a month later, several trade associations filed suit against Vermont’s governor, attorney general, health commissioner, and finance commissioner.  U.S. District Court Judge Christina Reiss refused to grant the Grocery Manufacturers Association (GMA) the injunction they sought to block the implementation of Act 120.  In the judge’s opinion:

Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the court’s characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.

Meanwhile, companies such as Kraft and Monsanto also lobbied Congress for a uniform GMO labeling law to be applied nationwide.

In the United States House of Representatives, the opposition to Vermont’s GMO labeling law was organized under Representatives Mike Pompeo of Kansas and G. K. Butterfield of North Carolina.  H.R. 1599, also called the Safe and Accurate Food Labeling Act, was written to prevent states from concocting a series of possibly conflicting GMO labeling requirements.  The bill would also create a voluntary GMO labeling program.  The bill passed on July 23, 2015.

Meanwhile, Senator Pat Roberts of Kansas introduced a bill to annul state GMO labeling requirements and give the United States Department of Agriculture the power to decide if GMO disclosure was necessary, and if so to determine what form that disclosure should take.  Forms discussed included websites, QR codes, and toll-free numbers.  The bill passed the Senate Committee on Agriculture, Nutrition, and Forestry, which Senator Roberts chairs.  However, it received only 49 of the 60 votes needed to pass the Senate.

 

Benefits of the GMO Labeling Law

Vermont’s GMO labeling law has been praised as an effective alternative to the practice of voluntary GMO labeling.  Advocates of the law point out that voluntary non-GMO disclosures have been allowed since 2001, and yet most large food companies continue to use GMOs under the radar.  Section 1 of Act 120 states:

…It is estimated that up to 80 percent of the processed foods sold in the United States are at least partially produced from genetic engineering….

Some advocates of Act 120 emphasize that the point is not necessarily to call into question the safety of GMOs, but to provide transparency so that the customer can make the final choice.  According to Vermont Governor Shumlin:

Vermonters take our food and how it is produced seriously, and we believe we have a right to know what’s in the food we buy.

In keeping the goal of clarity, one of the stated purposes of Act 120 is to:

Reduce and prevent consumer confusion and deception by prohibiting the labeling of products produced from genetic engineering as “natural”….

Act 120 also claims to address religious concerns regarding genetic engineering:

Persons with certain religious beliefs object to producing foods using genetic engineering because of objections to tampering with the genetic makeup of life forms and the rapid introduction and proliferation of genetically engineered organisms and, therefore, need food to be labeled as genetically engineered in order to conform to religious beliefs and comply with dietary restrictions.

Surveys have suggested that anywhere between 66% and 93% of Americans (depending on the poll) would appreciate having GMOs clearly labeled on their food.

The labeling method specified under Act 120 is unquestionably clear.  Customers can readily see if their favorite foods contain GMOs or not—before they even buy the product.  Visiting a website or calling a toll-free number would be a hassle in the grocery store, and even QR codes are not without drawbacks.  Polling shows that about 40% of Americans don’t have phones that can read QR codes, and even those who do don’t necessarily take advantage of the technology.  Furthermore, a QR code must lie flat and be fairly large for successful scanning, making them practically unusable on some items.

 

Drawbacks of the GMO Labeling Law

One of the major concerns about Vermont’s new law is that it sets the stage for legislative chaos.  If individual states are allowed to regulate their own GMO labels, the result could theoretically be a system of requirements that no company with nationwide distribution can meet.  According to Campbell’s president Denise Morrison:

Put simply, although we believe that consumers have the right to know what’s in their food, we also believe that a state-by-state piecemeal approach is incomplete, impractical and costly to implement for food makers.  More importantly, it’s confusing to consumers.

Major food companies, including General Mills, warn that changing their labels will cost money.  That cost will ultimately be passed on to the consumer.  While the relatively minor change in labeling will not create significant costs in and of itself (about $9.20 a year for a family of four), the concern is that consumers will shy away from foods labeled “produced with genetic engineering.”  This will create a shift in the marketplace, rewarding companies and products that do not use GMOs and in turn forcing other companies to source non-GMO ingredients to remain competitive.  A study funded by the Corn Refiners Association estimates that this change could cost the average American family as much as $1,050 annually.

These opponents of Act 120 point out that genetic engineering is not considered hazardous to health by the Food and Drug Administration.  In the words of the Grocery Manufacturers Association (GMA):

Putting aside the question of the law’s constitutionality, GMA strongly believes that mandatory statements on labels should be reserved for declarations regarding health, safety, and nutritional information; in other words, information that the Food and Drug Administration (FDA) deems material.  FDA does not consider a statement on a label regarding the presence or absence of genetically engineered (GE) ingredients to be a material statement.  Thus, it should be left as a voluntary claim made at a manufacturer’s discretion.

Current Secretary of Agriculture Tom Vilsack has also weighed in on the GMO labeling issue:

When we require a label on something, we’re either warning there’s a potential safety problem or we’re giving nutritional information.  GMO labeling doesn’t fit.  There’s not a safety issue, and it doesn’t affect nutrition.

Furthermore, a Pew Research poll of scientists connected with the American Association for the Advancement of Science indicated that 88% of scientists say that genetically modified foods are generally safe.  With this in mind, many feel that any push for GMO labeling amounts to fear-mongering or, in the words of the GMA, the promotion of “pseudo-science and web-fed hysteria.”

Finally, adding to industry resentment toward Act 120 is the fact that tiny Vermont, with only a small percentage of America’s population, has essentially set the agenda for the entire country.  According to Ken Powell, CEO of General Mills:

The law of the land is Vermont.  That’s just a fact.

 

Moving Forward

Some companies have announced plans to label GMOs on all of their products, including:

• Campbell’s.
• General Mills.
• Kellogg.
• Mars.
• Con Agra.

Accommodating Vermont is not a foregone conclusion, however—the editors of The Packer, a weekly newspaper for the produce industry, remarked in an article titled “How to Deal With Vermont”:

Of course, shippers could also decline to do business with receivers in the 49th-most populous state, home to about 600,000 consumers.

Decisions on whether or not to do business with Vermont is up to each individual company.  Companies cannot combine to resist Act 120, as that would be a violation of antitrust laws.

However, the food industry hasn’t given up hope for a federal rule on GMO labeling.  According to Paul Norman, president of Kellogg:

We continue to strongly urge Congress to pass a uniform, federal solution for the labeling of GMOs to avoid a confusing patchwork of state-by-state rules.

Senator Roberts and Senator Debbie Stabenow of Michigan, a ranking member of the Senate Agriculture Committee, forged a bipartisan agreement on GMO labeling laws on June 23, less than a week ago.  This agreement has similarities to Senator Roberts’s previous bill, but includes a few compromises.  In a nutshell, the new bill would:

• Prohibit states from making GMO labeling laws.
• Make GMO labeling mandatory across the nation on all FDA-regulated foods.
• Require large-scale manufacturers to choose between a text, symbol, or QR disclosure.
• Allow small-scale manufacturers to opt to provide a web address or telephone number.
• Exempt very small food manufacturers altogether.
• Require the USDA to study potential problems with different disclosure methods within a year after passage.
• Prohibit manufacturers from using their labels to promote or denigrate the safety of biotechnology.
• Prohibit products that are not legally required to have a GMO disclosure from being labeled as “non-GMO” unless they are also certified organic.
• Give the power to penalize noncompliance to the states.

Of course, the compromise has its critics.  For one thing, the compromise again falls back on controversial QR codes.  It also defines “genetic engineering” far more narrowly than the Vermont act does, exempting some of the latest techniques such as gene editing.  As for the definition of a “small” or “very small” manufacturer, that would depend on the opinion of the USDA’s Agricultural Marketing Service.

Senator Roberts is working to move the bill through the system as quickly as possible.  However, it may be a month before it comes up for debate.

Meanwhile, the ongoing GMO controversy continues among both consumers and scientists.  Both sides agree that the presence of labeling will probably reveal just how passionate the public is on the subject of GMO safety.

 

Update—The Roberts-Stabenow compromise mentioned in this post has since been passed and signed into law, preempting the Vermont labeling law.  See Helpful Resources below for more information.

 

Helpful Resources

No. 120
The full text of Vermont’s GMO labeling law.

Consumer Protection Rule 121
The annotated rule put out by the Vermont Attorney General’s office.

“Cost Impact of Vermont’s GMO Labeling Law on Consumers Nationwide”
The Corn Refiners Association study cited above.

Campbell Announces Support for Mandatory GMO Labeling
An official press release stating Campbell’s position on GMOs and GMO labeling, including an example of how the new Vermont-compliant labels will look.

GMO Labeling & Disclosure
USDA site with information on new national GMO labeling requirements.