This blog provides commentary on emerging food law and policy developments. The posts are written by the faculty, staff, and attorneys in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law. The views expressed are those held by the individual authors - we encourage all well reasoned perspectives.
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
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:http://www.leg.state.vt.us/docs/2014/Acts/ACT120.pdf.)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
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
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.
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
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.
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