Vermont GMO labeling law could have widespread effects

Rick Fahr May 5, 2016, 3:31pm


MONTPELIER, Vt. (Legal Newsline) – A law set to take effect in Vermont on July 1 has food producers considering effects that could extend far beyond one small state.

Act 120 will require food products made with any genetically modified organisms (GMOs) to carry that information on a label. The requirement will compel “labeling of food produced with genetic engineering” and will apply to any food for sale by retailers.

The law also prohibits foods being identified or advertised as “natural” if those foods contain GMOs. Sanctions for failing to abide by the labeling requirement include a $1,000 per-day fine.

Patrick Harrington, an associate in the Insurance Practice Group of Drinker Biddle & Reath in Philadelphia, said the law will, in effect, push producers to develop universal labeling that adheres to one state’s standard.

“The issue is that when national manufacturers produce products, they're not going to want to have a Vermont assembly line and a non-Vermont assembly line, so that same product's labeling will need to be universally applicable,” he told Legal Newsline.

GMOs have been around for decades, but controversy regarding their use continues today. In the United States, many varieties of corn and soybeans contain GMOs that raise yields and allow farmers to use certain pesticides. Rice growers, though, do not use GMOs because large overseas markets refuse to accept genetically modified foods.

GMO advocates contend that the science is safe and allows farmers to produce more food in harsher conditions. Opponents claim that the long-term effects of GMOs in the food supply are not known and that those effects could be seriously harmful.

Industry groups - including the Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association and National Association of Manufacturers - have filed a lawsuit to quash the law. The suit alleges that the law violates the First and Fifth amendments and the Commerce Clause of the U.S. Constitution.

The groups sought an injunction to prevent the law from being implemented, but that request was denied.

In Congress, efforts to establish a national program of voluntary labeling have failed.

Harrington noted that while GMOs have supporters and detractors, consumers have a right to know what they are purchasing.

“I think here, much more important is the need for clarity for consumers so they know what they're buying,” he said. “If you want to go buy a bag of Doritos, that’s fine. But if you want to go buy a more expensive bag of non-GMO corn ‘natural’ tortilla chips, the consumer wants to make sure they're getting what they pay for.”

When asked if the law’s sanctions would apply only to food producers or also retailers, Harrington said the practical application is uncertain.

“This really could be anyone, but likely the manufacturer who sent a non-compliant product into the state, or the storeowner who places it on the shelf. It depends very much on the sales channels,” he explained.

“Oreo cookies that are shipped in to be placed in supermarket shelves would likely be the responsibility of Nabisco, but the same Oreos that were bought in New Hampshire by a small shop owner and placed out for sale would likely be the responsibility of the shop owner.”

Ultimately, the law includes a potential “out.” Manufacturers or retailers could label products as “may contain” GMOs and comply with the statute. Harrington said such labeling already exists, on M&Ms for example.

“The issue is that 'What does it mean?' It complies with the law, technically, but doesn’t really say anything.  Imagine you were on a sugar-free diet and were faced with a product that stated ‘may contain sugar,’” he said.

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