This spring Vermont’s passage of a bill requiring mandatory labeling of genetically engineered foods at the retail level represents the first implementable GMO labeling bill in a groundswell of pressure in recent years to provide states the authority to determine how food should be labeled.
Unlike bills passed last year in Maine and Connecticut, which require four or five other states to pass GMO labeling laws before they can be enacted, if the bill can stand in the courts, it will be the first implemented. As of now it is set to go into effect July 2016.
The federal Food and Drug Administration has said it doesn’t have the ability to mandate the labeling of GMOs since it recognizes the ingredients as no different to conventional products.
The Vermont bill gives the state the authority to regulate the labeling of genetically engineered foods.
It requires retail food to have “clear and conspicuous language on the front or back of the package of the food, with the words ‘partially produced with genetic engineering’ or ‘may be partially produced with genetic engineering.’” The bill also makes it illegal to call any food product containing GMOs “natural” or “all natural.”
Certain foods are exempt from the labeling requirement, such as dairy, meat and alcohol.
“Any law requiring the labeling of foods that contain GMO ingredients creates extra costs for farmers, food manufacturers, distributors, grocers and consumers,” according to Karen Batra, Biotechnology Industry Organization director of food and agriculture communications. “The proposal under consideration in Vermont is especially problematic because it puts these additional burdens solely on Vermont’s citizens.”
Ronnie Cummins, national director of the Organic Consumers Association (OCA), says, “Vermont’s landmark victory will force food companies to either label GMOs in all states, or reformulate their products to be GMO-free in order to avoid stating ‘this product was produced using genetic engineering’ on their packaging.”
Jim Harrison, president of the Vermont Grocers Association, says the impact of the rule is hard to determine until the regulations are promulgated and then implemented.
Some food companies could choose not to do business in Vermont. “Manufacturers are not likely to ignore states like New York, but a state like Vermont is just a little city,” he says.
A national, or at least a regional approach, rather than state-by-state laws, would allow for easier compliance among food producers.
Rep. Mike Pompeo, R-Kan., introduced legislation in April that provides for a national uniform standard, rather than a state patchwork of bills, and is widely supported by mainstream agricultural groups. An estimated 29 states have introduced a bill or referendum that calls for labeling of genetically engineered foods. New York is also on the cusp of considering its own state law. Currently Oregon is considering a citizens’ ballot initiative to label GMOs in November.
Even if states have the same goal, lawmakers don’t write language exactly the same. Thresholds for the amount of material without having to label could be different as well as exemptions, Harrison says.
Cathy Bacon, president of Freedom Foods, who provide product development and co-packing for a large range of specialty foods including organic, kosher and gluten-free, says labeling requirements could put an extra burden on the small companies she services.
Rick Zimmerman, executive director of Northeast Agribusiness & Feed Alliance, says there could be a demand for non-GMO feed as a source for eventual products that would end up in the marketplace. The fact that over 90% of corn and soybeans grown in the U.S. is biotech creates a challenge to meet demand.
“If in fact a significant increase in demand needed to be met, it could create a seismic shift in production practices,” and that in turn would reduce the benefits such as less pesticide use and improved productivity that come from biotechnology, he notes.
It is estimated that as much as 80% of foods contain at least trace amounts of GE ingredients, and industry anticipates labeling could increase costs to consumers by as much as $400 per year.
Legal challenges ahead
An analysis conducted in February 2013 by the Vermont Attorney General concerning its labeling bill stated: “If H 112 is enacted and a challenge is brought, at least two of the claims will be constitutional claims - First Amendment and Commerce Clause.”
Vermont’s Attorney General also estimated it would cost at least $1 million to fight an anticipated industry lawsuit. Within the legislation, Vermont provided a fund to help defend against the legal challenges.
Zimmerman says the funded dollars in anticipation of the legal challenge “raises a question of whether that’s the most prudent approach for Vermont taxpayers to take.”
The organic industry anticipates food retailers and companies to challenge the law in courts, but that it will be upheld.