On July 1, 2016, Vermont will become the first state in the nation to require food manufacturers and retailers to label certain foods that are produced with genetic engineering. The law, commonly known as Act 120, or the “GMO labeling law,” was signed by Governor Peter Shumlin on May 8, 2014.
The law generally requires that foods intended for human consumption and offered for retail sale in Vermont be labeled if they are “entirely or partially produced with genetic engineering,” as that term is defined in the statute. Importantly, the law applies not only to processed or packaged foods produced by food manufacturers, but also unpackaged, “raw agricultural commodities” advertised and sold by retailers. The law contains exemptions for foods consisting of or derived entirely from animals, alcoholic beverages, certain processed foods that contain essentially trace amounts of genetically-engineered materials, and certain prepared foods.
About a month after the law’s passage, the Grocery Manufacturer’s Association and several other groups representing food producers and retailers filed suit in federal court seeking to stop the law from taking effect. After denying requests to intervene in support of the law filed by the Vermont Public Interest Group and the Center for Food Safety, the court denied the challengers’ request for an injunction prohibiting implementation of the law. That decision is now on appeal at the federal appeals court based in New York. As of this writing, the law is still scheduled to take effect in July.
Assuming it is not invalidated by the courts, Act 120 is likely to raise a host of novel and potentially complex issues surrounding the definition of “genetic engineering,” the precise nature of the labeling requirement (especially for retailers), and application of the exemptions. Fortunately, regulations recently issued by the Vermont Attorney General—responsible for enforcing the law—contain a “safe harbor” provision for retailers who rely on sworn statements of suppliers. The provision creates a phased enforcement scheme where certain non-compliant processed foods will be presumed to have been manufactured prior to the law’s implementation for a year after the law goes into effect.
Nonetheless, the Attorney General has made it clear that “willful violations” of the law will be targeted immediately upon the law’s taking effect, and non-compliance could result in an enforcement action resulting in civil fines up to $1,000 per mislabeled product per day. Therefore, food retailers and manufacturers who have not already done so should consider carefully how Act 120 and the Attorney General’s regulations might affect their labeling obligations.
Attorneys in Dunkiel Saunders’ food and green marketing practices have been tracking developments in the new law and in the legal challenge, and are available to assist producers and retailers looking for advice on how the law might affect them.