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New Vermont GMO Labeling Law Fuels Debate

July 15, 2014

The debate over mandatory labeling of genetically modified organisms (GMO) in foods heated up when Vermont Governor Peter Shumlin signed HB 112 into law on May 8, 2014. The new law requires the labeling of food produced entirely or partially from GMOs by July 1, 2016.

Vermont's GMO labeling law is the first with an effective date. Connecticut and Maine passed laws mandating GMO labeling; however, those laws have implementation schemes that are conditional on neighboring states passing similar legislation. Connecticut H.B. 6527 was enacted June 25, 2013, but does not become effective until four other states—including one that boarders Connecticut—adopt similar legislation. Maine H.B. 490 was enacted Jan. 12, 2014, and requires four other contiguous states to adopt GMO labeling requirements before it takes effect. Numerous other states have GMO legislation pending, however, none has passed yet.

The Vermont GMO labeling law does provide some exemptions, including food derived from animals fed GMO food, processed food that contains processing aids or enzymes produced with genetic engineering, alcoholic beverages, food containing less than 0.9 percent by weight of materials produced with genetic engineering, food intended for immediate human consumption or food served in restaurants, and medical food.

Liability for failing to properly label food containing GMOs may result in civil penalties of $1,000.00 per day per product. Consumers would be entitled to a private right of action to enforce violations of any regulations promulgated.

In drafting the bill, Vermont legislators anticipated that there would be legal challenges. As a result, the law establishes a $1.5 million legal fund to pay costs or liabilities incurred in implementation and administration of the law. The same day that the legislation was signed into law, the Grocery Manufacturers Assn (GMA) issued a press release calling the new law "critically flawed" and announcing that it plans on filing suit in federal court against the state of Vermont to overturn the law.

GMA, along with the Snack Food Assn, the International Dairy Foods Assn and the National Assn of Manufacturers subsequently filed suit in the United States District Court for the District of Vermont on June 12 seeking to declare the Vermont GMO labeling law invalid on the ground that it violates the United States Constitution.

A major concern with state GMO labeling laws is they will result in higher food costs for consumers. A Cornell University study, released in May 2014, estimated that a proposed mandatory GMO labeling bill in New York would cost a family of four an average of $224 per year. Studies on the costs to consumers of a mandatory GMO labeling ballot initiative introduced in California in 2012 and one introduced in Washington State in 2013 were estimated to be $348 to $401 in California and $360 to $490 in Washington State for a family of four.

Moreover, according to the Cornell study, "The labeling change if evoked will be so large as to cause food system changes which cannot be fully predicted at this time but surveys and experiences from Europe suggest that labeled GM products are more likely to disappear over time."

Federal law does not currently require GMO labeling since FDA has determined that the existing regulatory framework provides the agency with sufficient authority to ensure safety and that GMO ingredients do not inherently pose special safety or health risks to human beings that would require consumer notification.

Concern about differing state GMO labeling laws led to the April 2014 introduction of the Safe and Accurate Food Labeling Act of 2014 (H.R. 4432) in Congress. The act, which has bipartisan support, would amend the Federal Food, Drug, and Cosmetic Act to establish premarket notification requirements for a bioengineered organism intended for a food use application. It also would give sole authority to FDA to require mandatory labeling on GMO food, if such food is found to be unsafe or materially different from foods produced without GMO ingredients.

Significantly, H.R. 4432 would preempt any state laws that mandate the labeling of food that contains or is derived from GMO ingredients. This bill is supported by the food and biotech industries since, according to GMA, it would remove the confusion and uncertainty of a 50-state patchwork of GMO safety and labeling laws and affirm FDA as the nation's authority for the use and labeling of genetically modified food ingredients.

This article is reprinted with the permission of Packaging Digest magazine.