May 9, 2014

Vermont Becomes First State to Require Labeling of Genetically Engineered Food

Seller Beware: Consumer Protection Insights for Industry

Vermont has become the first state to enact a law requiring labeling of foods containing genetically modified organisms (GMOs). Starting in 2016, this new law will require farmers and food manufacturers who sell their products in Vermont to label foods that have ingredients enhanced by genetic engineering (GE). The law, which was passed on April 23 and signed into law on May 8, is the first to require such labeling without any conditions.

Food industry groups have vowed to challenge the law in court. And taking them at their word, Vermont lawmakers created a $1.5 million legal fund to pay for any "costs or liabilities" of implementing the labeling requirements. Vermont is no stranger to having to defend its unusual consumer advertising regulations. The state previously faced litigation over similar labeling requirements for milk and mercury, which dairy farmers and electrical manufacturers challenged on Commerce Clause and Freedom of Speech grounds.

The Vermont GE labeling law applies to fresh produce sold in grocery stores and packaged foods sold at retail. Under the law, all GE fresh produce must be labeled ̶ or sold in a bin or shelf that states "produced with genetic engineering." Processed foods that contain one or more GE ingredients must be labeled "produced with genetic engineering," "partially produced with genetic engineering," or "may be produced with genetic engineering." Vermont has not yet provided guidance for when each label is to be used. Additionally, the law forbids GE foods or foods with GE ingredients from being labeled as "natural," "naturally made," "naturally grown," or described similarly. The labeling law does not apply to restaurants, nor does it apply to meat or dairy products made from animals that consumed GE feed or feed with GE ingredients.

The passage of the Vermont law may provide momentum for similar initiatives in other states. Although voters in California and Washington have rejected ballot initiatives to require GMO labeling, two other states, Connecticut and Maine, have already passed laws that will require labeling of GE foods once a certain number of neighboring states adopt similar measures. Twenty-three other states reportedly have active bills that would require labeling of GE foods or foods with GE ingredients. Most notably, a bill in the the New York State Assembly recently passed the committee stage, the farthest any such bill has progressed. Federal lawmakers recently proposed legislation that would preempt state laws and provide uniform regulations for GE labeling, potentially assuaging the food industry's concerns of a state-by-state regulatory patchwork. Still, the Vermont law represents a major victory for consumer groups supporting GE labeling laws.

Scientists use genetic engineering to enhance the genes of crops. This can make them, for example, more resistant to pests, better able to withstand droughts, and otherwise hardier. An estimated seventy to eighty percent of packaged foods in the US contain some kind of GE ingredient. Though the FDA has stated for more than two decades that there is "no basis for concluding that bioengineered foods differ from other foods in any meaningful or uniform way," consumer and environmental groups have campaigned for labeling requirements for such ingredients because of concerns that the long-term effects of GE foods, a recent addition to the food supply, are unknown.

One prominent Vermont-based food company, Ben & Jerry’s, supported the legislation. As noted on their website, the transition to non-GMO ingredients is "complex." Whether the rest of the food industry will need to undertake this analysis for all of their food products by January 1, 2016 may be determined in court.

© Arnold & Porter Kaye Scholer LLP 2014 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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