Toxic_AppleIn July 2016, Vermont’s Act 120 will take effect, requiring food manufacturers that sell into the state to indicate on food labels whether their products are made using genetic engineering.  The new law, which was enacted in May 2014, was precipitated by a growing GMO labeling movement that now has gained traction in at least 37 states and that is fueled by the lack of scientific certainty concerning the health effects of genetically modified food.

The law was precipitated by the fact that the FDA provides only nonbinding guidance on the labeling of genetically engineered foods.  Legislators and consumer groups in Vermont expressed concerns that the federal government has not conducted safety testing on these products, although an estimated 80 percent of processed food in the U.S. is at least partially produced using genetic engineering.

Therefore, under the Vermont law, food that is produced entirely or in part using genetic engineering must bear the label, “Produced with genetic engineering,” “partially produced with genetic engineering,” or “may be produced with genetic engineering,” as appropriate.  The law also prohibits genetically engineered foods from being labeled as “natural,” “naturally made,” “naturally grown,” “all natural,” or any similar phrasing.

One hang-up to establishing regulations for genetically modified food is often establishing a definition of what constitutes “genetic engineering.”  The Vermont law defines it as follows:

[A] process by which a food is produced from an organism or organisms in which the genetic material has been changed through the application of:  (A) in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) techniques and the direct injection of nucleic acid cells into cells or organelles; or (B) fusion of cells (including protoplast fusion) or hybridization techniques that overcome natural physiological, reproductive, or recombinative barriers, where the donor cells or protoplasts do not fall within the same taxonomic group, an a way that does not occur by natural multiplication or natural recombination.

The more technical terms within this definition are also defined by the Vermont law.

The Vermont law does not apply to foods that are intended for immediate human consumption; food sold in restaurants; foods such as meat, honey, and eggs that are entirely derived from an animal regardless of whether the animal has consumed genetically engineered food or drugs; or foods whose labeling is dictated by the US Department of Agriculture.  The law also does not require food manufacturers to list or identify the ingredients that are genetically engineered.

The Vermont law includes penalties for noncompliance of $1,000 per day, per product.  But, manufacturers who are not in compliance will receive a 30-day warning letter and an opportunity to correct violations before fines are assessed.  In addition, the state plans to have a phase-in period for products that were distributed before July 1, 2016, but that are still on grocery stores shelves as of that date.

179235587After the Vermont law was enacted, Congress responded by attempting to preempt the state law.  Proposed legislation in Congress, called the Safe and Accurate Food Labeling Act, would have banned state-mandated GMO labels unless genetically modified food was shown to pose a health risk.  The proposed US legislation also would have established a nationwide voluntary GMO labeling program.  The bill passed in the House in July 2015, but was rejected in the Senate in a narrow vote in March 2016.  The Vermont law is also facing a legal challenge in federal court by manufacturers on First Amendment grounds, similar to the initial challenges to the SEC’s conflict minerals rule.  These challenges are not expected to be resolved by the time the law goes into effect in less than three short months.

Several manufacturers, including General Mills, Kellogg, and ConAgra have indicated that they plan to change their labeling to comply with the Vermont law on a nationwide basis, on the grounds that it is not cost-effective for manufacturers to have to tailor their labeling on a state-by-state basis.  Other manufacturers are expected to follow suit.

Meanwhile, Vermont’s law is likely the beginning of a larger trend.  Connecticut and Maine have both already enacted laws that will impose GMO labeling requirements, if other states adopt them first.  In other words, this is a trend that we expect will stay, and that we expect will cause most food manufacturers to change their labeling practices nationwide.