Friday, May 8, 2015

Whatever happened to all those GMO labeling bills?

So, what is the status of all of those GMO labeling bills and other initiatives that you may have heard about over the last year or so?

Two states – Oregon and Colorado – had mandatory labeling initiatives in the recent November, 2014 elections.  Voters turned them down in both states:  by a wide 65% -- 35% margin in Colorado and by a close 50.03% -- 49.97% in Oregon (this follows a prior defeat in the state in 2002).
In 2013, voters in Washington State rejected a GMO-labeling bill, by a vote of 51% to 49%.  And, in 2013, California voters defeated a GMO label law by 51.4% to 48.6%.  

Therefore, no state-wide ballot initiative has yet succeeded.

State legislatures have, in some cases, stepped in to the void.  In May, 2014, the Governor of Vermont signed the first law requiring the labelling of genetically-modified foods.  The Vermont law requires that any food shall be labeled as produced entirely or in part with genetic engineering if it so produced and if it is offered for sale in Vermont after July 1, 2016.  (Read the law here:  The law includes a de minimis exception where genetically-engineered materials make up no more than 0.9 percent of the total weight of the processed food, and an exception for restaurants and similar food establishments.  As its state legislators predicted, a challenge to the law is pending in federal court.  On April 27, 2015, the judge in the case dismissed the Grocery Manufacturers Association’s motion (GMA was joined by other food associations as plaintiffs) for a preliminary injunction to prevent the law from going into effect while litigation is pending.  The judge did not, however, grant Vermont’s motion to dismiss the case, which means that it will probably proceed to trial.  The plaintiffs have not yet filed an appeal.  

In December, 2013, Connecticut's governor signed legislation that would require labeling on foods made with genetically-modified ingredients (read the law here:    

    While Connecticut was the first state to pass a labeling law, its rule does not take effect until at least four other Northeastern states, with a combined population of at least 20 million, pass similar laws.  Similarly, in January, 2014, the governor of Maine signed a GMO-labeling law, but the law won’t go into effect until 5 surrounding states pass a similar law. (   
Several attempts to pass laws failed in New York and in and Massachusetts in recent years, but efforts are ongoing there and in more than 20 other states. 
The specter of many differing state labeling laws, however, has led to concerns by food producers, who argue that different state requirements would be prohibitively expensive – in general, no manufacturer wants to have to do the same thing in one or more different ways – it only increases costs.  Manufacturers have therefore appealed to federal lawmakers, who have responded with two different approaches.

One, H.R. 4432 a bill reintroduced  on March 25, 2015 (it was first introduced in 2014) by Rep. Mike Pompeo (R-KA) and entitled the “Safe and Accurate Food Labeling Act of 2014,” which provides that no “bioengineered organism” shall be introduced into interstate commerce without premarket approval from the FDA.  (Read the text of the bill here:^Q1_424_a_1&nearest=H45FB103B5DF24181AEB5722668CB002C).  There is not yet a Senate version of the bill, however. The bill currently has 37 co-sponsors in the House (a list is here:{%22search%22:[%22HR+1599%22]}) and the American Farm Bureau Federation is fully backing the legislation.  However, the National Farmers Union opposes the bill.

The Act makes any sale without such premarket approval a “prohibited act” under the Federal Food, Drug, and Cosmetics Act.  The Act defines a “bioengineered organism” as a plant whose genetic makeup has been modified by recombinant DNA techniques to produce and the modification “could not otherwise be obtained using conventional breeding techniques.”  As with other FDA programs, the producer of the bioengineered organism used as food would submit its data to the FDA, demonstrating why the producer believes that its product “is as safe for use by humans or animals …  as one or more comparable marketed foods that are not produced from … such bioengineered organism[.]”  The FDA must approve or deny the application within 210 days of its submission.  Also, if approved, the FDA will make public the existence and content of a premarket application.  
       If, in approving the application, the FDA determines that there is a “material difference” between the food made with bioengineered organisms and comparable foods made without such organisms, the Secretary specify a label for the product that would adequately inform consumers of the material difference. The Act defines “material difference” as a difference that significantly alters the function or composition of the food, so that the usual name of the food no longer describes it; one that has significantly different nutritional properties than the comparable food; or one that contains an allergen that would not likely be present in the comparable food.       
Finally, the Safe and Accurate Food Labeling Act explicitly states that, in the regulations to be developed by the FDA to implement the Act, the FDA may not require food made with bioengineered organisms to be so labeled, although it may permit label descriptions of the way the food was modified to express characteristics different than the comparable food, and disclosure in advertisements (other than labels) that the food was developed with the use of bioengineering.
On the side of federal labeling legislation that would pre-empt a patchwork of state labels is the second recent federal foray into the debate:  the Genetically Engineered Food Right-to-Know Act, a bill recently reintroduced by Sens. Barbara Boxer (D-CA) and Richard Blumenthal (D-CT) and Rep. Peter DeFazio (D-OR).  The bill, H.R 1699 (, first introduced in 2013 with 67 co-sponsors, would amend the FDC Act to provide that a food is misbranded if it has been genetically engineered or contains one or more genetically-engineered ingredients and it has not been clearly labeled to indicate as much.  The bill would exempt food served in restaurants and similar eating establishments.  The bill also defines “genetically-engineered” foods as those produce with recombinant DNA techniques, as well as a “fusion of cells beyond the taxonomic family” that “overcome natural physiological reproductive or recombinant barriers” and that are “not techniques used in traditional breeding and selection.”  This bill currently has 40 co-sponsors in the House (H.R. 913:{%22search%22%3A[%22Genetically+Engineered+Food+Right-to-Know+Act%22]}) and 14 in the Senate (S. 511:{%22search%22%3A[%22Genetically+Engineered+Food+Right-to-Know+Act%22]}).  
The bill’s preamble states that Congress finds that “the process of genetically engineering food organisms results in material changes and the fact that foods are genetically engineered is of material importance to consumers[,]  and that “the cultivation of genetically engineered crops can have adverse effects on the environment in the form of cross-pollination of native plants, increased herbicide usage, and impacts on non-target and beneficial organisms, including the Monarch butterfly.” 
We don’t know when Congress will vote on either of these bills.  Stay tuned.

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