June 18, 2013

Connecticut Is First State To Pass GMO-Labeling Law; Maine Close Behind

Consumer Advertising Law Blog

On June 3, 2013, over opposition from the food, agribusiness, and biotech industry, Connecticut became the first state to pass legislation that will require labels for food containing genetically modified (GMO) ingredients. The legislation was hard fought and went through several iterations before finally being approved unanimously by the Connecticut Senate and overwhelmingly by the Connecticut House. Connecticut's Governor is expected to sign the bill into law.

Crucial for the food industry is a provision making the law contingent on the actions of other states. As a result, GMO labeling in Connecticut is not imminent.

GMO Labeling Background

More than 20 other states are considering similar labeling laws. In 2005, Alaska passed a law requiring the labeling of all genetically engineered fish and shellfish, but it does not apply to all foods like the Connecticut law. And just last fall, California's Proposition 37, which would have required GMO labeling, was defeated after a long and expensive campaign. At the federal level, in April 2013, Senator Barbara Boxer (D-CA) and Representative Peter DeFazio (D-Or) introduced the first federal bill that would require GMO labeling -- the Genetically Engineered Food Right-to-Know Act.

Moreover, as previously discussed here, the plaintiffs' bar has brought lawsuits across the country challenging certain claims on products (e.g., "All Natural") that they allege are inconsistent with GMO ingredients

Other actors are also taking stances on GMOs and GMO labeling. In March 2013, Whole Foods Market announced that it would require GMO labeling on all products sold in its stores. Ben & Jerry's -- which actively participates in pro-GMO labeling efforts -- has vowed that it will source non-GMO ingredients for all of its products by the end of 2013. Many countries outside of the US mandate GMO labeling, including the European Union, Australia, New Zealand, China, and India. In fact, a majority of European countries have banned the cultivation of genetically modified crops.

As evidenced by the various successes and defeats of GMO labeling laws, the debate over their utility continues. A 1992 FDA policy statement notes that GMO foods are not materially different from other foods. In noting his support for Connecticut's bill, however, Connecticut Senate President Donald E. Williams cited what he considers "mounting scientific evidence showing that genetically modified foods are harmful to our health." As that battle continues, supporters of the laws argue that regardless of the harms or benefits, consumers have a right to know whether the foods they purchase contain GMOs.

Should state requirements become effective, litigation appears possible. Opponents of state GMO-labeling requirements have pointed to a prominent New England appellate decision that struck down a Vermont law requiring the labeling of milk as being from cows treated with a hormone. International Dairy Foods Ass'n v. Amestoy. The court applied the First Amendment to rule that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement." In other words, "[a]bsent . . . some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it."

The Connecticut Legislation

The debate over GMO labeling laws led to several compromises in the Connecticut legislation. Most significantly, there are two triggers that must both occur before the law takes effect. First, four other states, including one that borders Connecticut, must pass a similar bill. Second, any combination of Northeastern states (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, New York, Pennsylvania, or New Jersey), with a combined population of at least 20 million people, must approve similar legislation. Connecticut Governor Dannel P. Malloy explained that these triggering provisions protected local farms by "ensuring that the regional agricultural market has adopted the new labeling system before placing an undue and disproportionate burden" on Connecticut farmers.

Although pro-GMO labeling activists criticize the triggers, they represent a compromise from a previous version of the bill that exempted farms with less than $1.5 million in gross sales and would have required five states with a total population of 25 million people, including New York and New Jersey, to enact similar laws before Connecticut's would go into effect. The triggers likely also stem from concerns that enactment of a GMO labeling law will result in lawsuits against the state, which could require significant defense costs for a single, small state.

Finally, the Connecticut legislation exempts several categories of food from labeling: (1) alcoholic beverages; (2) produce sold at roadside stands, pick-your-own farms, and farmers' markets; (3) meat from animals that were not genetically modified but were feed genetically modified foods or were given genetically modified drugs; and (4) food intended for immediate consumption that is never packaged for retail sale.

The Maine Legislation

In Maine, a bill with a similar trigger provision was passed overwhelmingly by the state senate and house the week of June 10. More legislative action will be needed before the bill can be presented for the Governor's approval, which is uncertain.

And to take effect, the Maine law would require either five other states to enact similar legislation or a state or states with a combined population of at least 20 million people to enact similar legislation.


© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.


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