Vermont Law Top 10 Environmental Watch List 2016

Vermont Act 120: A Light in the DARK for GMO Food Labeling

The future of genetically engineered (GE) food labeling largely depends on the outcomes of two laws: Vermont’s Act 120 and Congress’s H.R. 1599, “The DARK Act.” The former has the potential to embolden other states to pass mandatory labeling legislation. The latter seeks to quash all mandatory GE disclosure laws in favor of a purely voluntary labeling option.

Lobbyists in Washington, D.C., are rushing to stop Vermont and other states from passing laws requiring genetically engineered (GE) foods, or GMOs, to be labeled as such. The reason for their haste is that Vermont’s Act 120, a mandatory GE food labeling law, is scheduled to go into effect July 1, 2016. The food industry has spent more than $100 million to lobby against such labeling in other states. In 2016, if not before, the nation will find out whether industry’s efforts at the federal level will pay off and halt states like Vermont from requiring companies to disclose what is in the foods they sell.

Vermont became the first state to enact a law requiring labels on foods with genetically modified ingredients.

State House, Montpelier, Vt.—Vermont became the first state to enact a law requiring labels on foods with genetically modified ingredients. Photo courtesy of Laura Murphy.

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. Act 120 has two main labeling components. Basically, it requires GE foods to have labels that say, “produced with genetic engineering,” and prohibits GE foods from having the word “natural” on them. Recognizing that there is no federal framework for GE food labeling, and after a two-year legislative process including expert testimony and extensive studies and reports, Vermont passed Act 120 to serve four state interests. Specifically, the state’s interests are: 1) preventing consumer confusion and deception; 2) preventing potential risks to human health; 3) protecting, and enabling consumer choice about, the environment; and, 4) protecting religious practices.
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 are in discovery regarding the claims that were not dismissed, and the case is set to be trial-ready by the end of April 2016.

Act 120’s outcome could significantly impact other states contemplating GE labeling laws. Connecticut and Maine already have passed GE labeling laws, but with trigger clauses delaying the laws’ effective dates until nearby states pass similar laws. Currently, about 17 states have GE labeling bills pending.

The antithesis of Vermont’s Act 120 is H.R. 1599, “The Safe and Accurate Food Labeling Act of 2015,” known to GE labeling supporters as the “Deny Americans the Right to Know Act,” or the DARK Act. The House of Representatives passed the bill in July 2015 and it was referred to the Senate Agriculture Committee later that month. The DARK Act would seek to prevent enforcement of all existing GE labeling laws. It also would seek to prevent states, and even the U.S. Food and Drug Administration (FDA), from requiring future GE labeling. Instead, the Dark Act would create a voluntary scheme by which companies could label GE foods if they choose. But, the FDA issued guidelines for voluntary GE labeling in 2001, and no companies have chosen to voluntarily label their GE products since then. The DARK Act also would allow the food industry to continue labeling GE foods as “natural” until the FDA establishes a definition for the currently unregulated term.

In short, the DARK Act is designed to create a federal scheme ensuring that Americans do not know whether their foods are genetically engineered. Whether the bill or some compromise version will survive the Senate—or a behind-closed-doors, last-minute preemptive rider will be attached to an appropriations bill—remains unclear. Any federal requirement short of a mandatory GE label on the food product itself would not live up to the standard set by Vermont; it would not give consumers clearly accessible information at the point of purchase, and would not satisfy Americans’ call for labels on GE foods.

The year 2016 will be crucial for the future of GE labeling. If upheld, Act 120 could trigger a domino effect and inspire other states to pass legislation modeled after Vermont’s. If H.R. 1599 or its ilk survives, however, it could hinder Vermont and other states’ labeling efforts, and effectively leave consumers in the dark with regards to the foods they eat.