Vermont’s GMO labeling law set to take effect July 1, 2016 has spurred the food industry to action calling on the federal government to pass legislation that would pre-empt Vermont’s law, “Act Relating to the Labeling of Food Produced with Genetic Engineering.” The bill requires the food industry to identify on the product label if the product contains a genetically modified organism, or GMO. It’s estimated that today nearly 70 percent of all products are made with at least one GMO ingredient.
Just last week, Senate Republications passed a bill through the Agriculture Committee while the Republications are moving their Safe and Accurate Food Labeling Act (SAFE) bill through channels. Meanwhile, Democrats who don’t support SAFE are moving their own bill coined the “Biotechnology Food Labeling and Uniformity Act.” Currently, this is the only bill that explicitly requires food manufactures to list the presence of GMOs on the product’s Nutrition Fact Panel.
According to Thomas Sullivan, a partner with the law firm Morgan Lewis, the real elephant in the room is the legislation from Vermont. Groups have come together to challenge the bill and one of the main grounds is as a First Amendment issue. “The issue there is whether the Vermont Act properly mandates certain content, speech content, by forcing manufactures to put the label on their product,” explains Sullivan.
He says a lot of these issues went to the Circuit Court in Vermont as manufacturers sought an injunction against the Act going into effect. The District Court denied the injunction. “So unless something changes, the legislation is going into effect July 1.”
An interesting element in the labeling debate is that more than 10 states have passed similar laws to Vermont but several of these states put a clause in their bills that they would not go into effect unless Vermont’s bill goes in to effect.
“If you are a food manufacturer there are two main issues,” says Sullivan. One, do you develop one label for Vermont and another label for everywhere else or do you bite the bullet and develop one label for the entire country?”
There is a potential domino effect for the food industry. If Vermont’s law goes into effect and then other states follow through, there are now labeling requirements in multiple states.
“So if you’re a manufacturer, it’s March now. There’s no resolution to this issue. You’re potentially facing a July 1 deadline in Vermont and the legal case is up before the Second Circuit Court of Appeals. There’s a lot of uncertainty,” says Sullivan.
Campbell Soup Company is taking the route of one label and announced in January 2016 that they are working to become the first major food company to adopt food labels that will disclose GMO ingredients. The change in labeling is expected to take 12 to 18 months. Yet this is too long to meet the requirements of Vermont’s labeling law and ultimately other states’ as well.
Moving back Washington. The proposed bills are very vague. Some don’t define if the federal law would pre-empt state laws. Some don’t exactly define that labeling GMOs would be required. Some state bills require a smart label. Sullivan says it is unclear what the language will or should be but there has been talk about the FDA developing a symbol to identify GMO products. Interestingly, in 2001, the FDA issued guidance on GMO labeling and states they recognize there is not scientific evidence that GMO cause health problems.
Sullivan says that, in essence, the choice has essentially been taken out of the hands of the food companies. And there is one big question: What will be the scope of pre-emption? “This could really put manufacturers in a bind. They just want one label.”