June 28, 2016

Congress Likely to Reach Last Minute GMO Labeling Deal, But Only After Vermont GMO Labeling Law Goes Into Effect

Seller Beware: Consumer Protection Insights for Industry

Vermont's GMO Labeling Law will go into effect in less than a week, despite numerous congressional attempts to pass a national GMO labeling standard.

Most recently, on June 23, Senate Agriculture Committee Chairman Pat Roberts (R-KS) and Ranking Member Debbie Stabenow (D-MI) unveiled a bipartisan agreement that would establish a mandatory, nationwide label for foods that contain GMOs. If enacted, this agreement would preempt Vermont and other states and localities from establishing or carrying out conflicting GMO labeling laws. Under the proposal, the U.S. Department of Agriculture (USDA) would be directed to establish a mandatory GMO labeling standard within two years after enactment. Members intend that manufacturers would be able to disclose GMOs on their food packaging either through text on the package, a symbol, or a link to a website using a Quick Response (QR) code or similar technology.

The bill directs USDA to provide alternative, reasonable disclosure options for food contained in small packages. There would also be allowances for small food manufacturers. "Small food manufacturers" would have at least one additional year to comply with the labeling standards, while "very small food manufacturers" would be exempt from the GMO labeling requirement altogether. The bill, however, does not define either term.

This agreement is the result of months of negotiations between Chairman Roberts and Ranking Member Stabenow, and it contains key priorities for both Members. Aligned with the interests of the Chairman's constituent ranchers, the bill would prohibit the USDA from considering any food derived from an animal to contain GMO based solely because the animal may have eaten GMO feed. Likewise, Ranking Member Stabenow fought to ensure that organic producers would be able to display a "non-GMO" label in addition to the organic seal. Although organic foods are by definition non-GMO, Ranking Member Stabenow recognized the importance of providing consumers with more information about the foods that they buy.

Chairman Roberts and Ranking Member Stabenow are now scrambling to get the 60 votes needed to pass their negotiated deal before the Senate recesses for the Independence Day holiday. As the House has already recessed, the lower chamber will not consider the measure before Vermont's law goes into effect on July 1. Assuming that the Senate approves the agreement before recessing, the House could consider the legislation when it returns on July 5. House Agriculture Committee Ranking Member Collin Peterson (D-MN) has endorsed the bill.

Manufacturers should, by now, be prepared to comply with the Vermont law. Under the law, there is a presumption of compliance for foods distributed before July 1, 2016 and sold for retail until January 1, 2017. Foods produced before July 1, 2016, but distributed after that date, will not receive this presumption and be subject to penalties. As for civil liability, consumers must wait until July 1, 2017, one year from the law taking effect, to bring a private right of action against a manufacturer.

If enacted, Congress' GMO labeling measure would preempt the Vermont law, and manufacturers would need to pay close attention to USDA's implementation of the GMO labeling standards.

© Arnold & Porter Kaye Scholer LLP 2016 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.


Dana Weekes
Dana Weekes
Managing Director
Washington, DC
Pari Mody
Pari R. Mody
Senior Associate
Washington, DC
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