Hope Remains with GMO Food Labeling Efforts

By Bonnie Smith

On the evening of July 7—one week after Vermont celebrated its labeling law for genetically engineered (GE) foods going into effect—the U.S. Senate voted 63-30 to approve a federal GE food “labeling” bill. Today, the House of Representatives voted 306-117 to approve the bill. Unfortunately for Vermont and any other state that wants GE products labeled, the bill seeks to preempt states from having the authority to regulate the labeling of GE foods (as well as GE seeds). Vermont’s law requires GE foods to have labels saying, “produced with genetic engineering” and prohibits those labels from using the word “natural.” In contrast, the federal bill would give food companies three options for “labeling” GE food products: using electronic QR codes, symbols, or words. In some cases, companies would also have the choice of an 800 number.

Controversial Aspects of the Federal Bill

Labeling advocates in Vermont and across the nation point out that the QR code option would enable food manufacturers to hide GE related information while claiming they are disclosing the information to consumers. Most troubling is that the QR labeling option only allows consumers with smartphones, cell service, and the luxury of time to access the information.

Even though over 90% of Americans want to know whether the food they buy contains GE products, the federal bill would prevent a large percentage of the population from accessing such information. According to the Center for Food Safety, the bill “is on its face discriminatory against low-income, rural, minorities and elderly populations” that may not have access to such technology. As the New York Times noted in a recent editorial (“A Flawed Approach to Regulating Genetically Modified Food”), “[t]he only reason to do this would be to make the information less accessible to the public.”

The bill is also problematic because, as explained by the Food and Drug Administration (FDA), the definition of “bioengineering” could allow many products to go unregulated. Under the bill, bioengineering pertains only to food “that contains genetic material that has been modified through in vitro recombinant DNA techniques; and for which the modification could not otherwise be obtained through conventional breeding or found in nature.” The FDA takes greatest issue with the phrases “contains genetic material” and “could not otherwise be obtained through conventional breeding or found in nature.” The former would allow food products like oil, sugar, and soy that are made with GE sources but that do not contain modified genetic material to be outside the scope of labeling. The latter has issues of proof. The agency said, “[i]t may be difficult to demonstrate that a particular modification could not be obtained through conventional breeding or even that it could not occur in nature”—even if the food is genetically engineered.

In addition, the bill gives authority to the U.S. Department of Agriculture to determine how much of a food must be genetically engineered before it actually requires a label (or QR code, or phone number, or symbol).

Finally, the bill also lacks an enforcement mechanism. It imposes no fines or penalties to ensure that GE labeling (or QR codes, or phone numbers, or symbols) will actually take place.

Past Events Leading to the Federal Bill

In May 2014, Gov. Peter Shumlin signed Act 120 into effect and Vermont became the first state in the nation to require labels for GE foods by a specified date. Less than two months after passage, the Grocery Manufacturers Association and other industry groups (GMA) sued the State of Vermont. GMA challenged Act 120’s constitutionality, the state moved to dismiss the case, and then GMA sought a preliminary injunction. On April 27, 2015, the United States District Court for the District of Vermont issued an 84-page decision upholding the law’s disclosure requirement under the First Amendment, dismissing some claims, and denying GMA’s motion for a preliminary injunction. GMA then appealed the preliminary injunction denial to the Second Circuit on First Amendment grounds; the oral argument was on Oct. 8, 2015. Meanwhile, at the District Court level, the parties have been in discovery regarding the claims that were not dismissed, and awaiting the Second Circuit decision. The Environmental and Natural Resources Law Clinic here at VLS has been working on this issue for years; read more about the history and the lawsuit here.

Meanwhile, a little over a year after Gov. Shumlin signed Act 120 into effect, the House of Representatives passed H.R. 1599, “The Safe and Accurate Food Labeling Act of 2015,” known to GMO labeling supporters as the “Deny Americans the Right to Know Act,” or the DARK Act. The DARK Act sought to prevent enforcement of all existing GMO labeling laws by creating a voluntary scheme by which companies could label GMO foods if they chose. On March 16, 2016, the Senate rejected the DARK Act.

What the House and Senate just passed has been touted as a “compromise” bill for achieving GE labeling but in fact, because of its flaws, it does no such thing.

Potential Outcomes: the Good, the Bad, and the Ugly

Even though the House and Senate have approved the bill, President Obama could choose to exercise his veto power. In 2007, when then-Senator Obama was campaigning for the presidency, he expressed support for transparent GE-labeling measures when he said, “…we’ll let folks know if their food has been genetically modified because Americans should know what they are buying.”

Many companies have already chosen to label nationwide in accordance with Vermont’s law. It is possible that some companies will continue to comply with Vermont’s standards and reap economic benefits for their transparency. In an ideal world, even if Vermont’s law is preempted, other companies will recognize these benefits and follow suit.

Although both the House and the Senate voted to pass this GE food-labeling “compromise” bill that runs counter to the overwhelming American consumer’s desires, the President could still plant the seed of hope for transparency. If the President does not live up to the campaign promise he made nine years ago, and instead allows the bill to become a law, there are likely to be questions about the scope and extent of preemption, and there could also be a challenge filed against the federal law. Concerned Americans will not allow a discriminatory law to go unchallenged.

I encourage you to contact the White House and urge President Obama to take this final opportunity to stay true to his word by vetoing S. 764.

Bonnie isBonnieSmith_400 a second-year law student at Vermont Law School and is pursuing a dual degree in French business law with Cergy-Pontoise outside of Paris. Through her legal studies, Bonnie aspires to reach a greater understanding of sustainable solutions to human development though responsible business practices.