On July 1, 2016, Vermont’s first-in-the-nation GMO labeling law (Act 120) took effect, requiring food manufacturers and retailers to disclose ingredients “produced with genetic engineering.” As our previous posts on this issue reflect, many food producers and sellers were working diligently over the past years (the law was passed in the fall of 2014) to prepare for the July 1 effective date, analyzing the law’s requirements, assessing and helping to improve the Vermont Attorney General’s regulations, and adjusting labeling practices for compliance. In fact, after the March 2016 defeat of a voluntary labeling standard in Congress and the initial defeat of a legal challenge to Vermont’s law, several large food manufacturers announced their intent to comply with Act 120’s requirements on a nationwide scale, making it appear that the Vermont’s labeling requirements might become the template for a national standard.
On July 14, though, just two weeks into Vermont’s experiment with GMO labeling and after a flurry of intense lobbying by industry groups and labeling advocates, Congress passed a federal law (S.764) that aims to replace Act 120 with an as yet to be fully worked out federal standard. President Obama is expected to sign the law, which takes the form of an amendment to the Agricultural Marketing Act of 1946 and reflects a compromise between senators supporting the food industry’s position and pro-labeling interests. It replaces Act 120’s express labeling requirement with a more flexible approach that would allow food manufacturers the option to print a toll-free phone number or, potentially, a “QR code” on product packaging to allow consumers to determine whether the product contains genetically engineered materials.
Importantly for Vermont food sellers and consumers, the law contains a provision prohibiting states from “directly or indirectly establish[ing]” any “requirement relating to the labeling of whether a food . . . or seed is genetically engineered . . . or was developed or produced with genetic engineering.” That provision – known as a “preemption clause” – prohibits the states from regulating the labeling of genetically engineered foods or ingredients. Thus, although Act 120 remains on the books unless and until the Vermont legislature acts to remove or alter it, any attempt to enforce it, either by the Vermont Attorney General or a private citizen under the law’s private suit provision, likely would result in a legal claim that Act 120 is invalid as a matter of federal law.
S.764 leaves it up to the U.S. Department of Agriculture to issue a set of regulations – due within the next two years – spelling out the labeling requirements in more detail. Therefore, it is difficult to predict what the law’s specific requirements will look like at this time. It is very likely, though, that the federal law’s requirements will differ from Act 120’s in significant ways. Food manufacturers and producers who already have begun the process of compliance with the Vermont law will have to decide whether to scrap those efforts or continue to label consistent with Act 120 and make appropriate adjustments as the USDA’s guidance takes shape.