WITH final approval anticipated, the Vermont Senate's passage of a bill requiring mandatory labeling of genetically modified organisms (GMOs) in foods at the retail level cleared the chamber April 16 by a vote of 28-2.
The action represents the first implementable GMO labeling bill in a groundswell of pressure in recent years to give states the authority to determine how food should be labeled.
Unlike bills passed last year in Maine and Connecticut, which require four or five other states to pass GMO labeling laws before they can be enacted, if the Vermont bill can stand up in the courts, it will be the first implemented.
The Senate-passed legislation would take effect July 1, 2016; the House version would kick in July 1 of this year.
Differences will have to be settled before the governor can sign the bill.
The federal Food & Drug Administration has said it doesn't have the ability to mandate the labeling of foods containing GMOs because it doesn't consider the ingredients any different from conventional products.
The Vermont bill gives the state the authority to regulate GMO labeling.
The Vermont bill also requires retail food to have "clear and conspicuous language on the front or back of the package of the food, with the words 'partially produced with genetic engineering' or 'may be partially produced with genetic engineering.'" The bill also makes it illegal to call any food product containing GMOs "natural" or "all natural."
Certain foods are exempt from the labeling requirement, such as dairy, meat and alcohol.
According to Karen Batra, Biotechnology Industry Organization director of food and agriculture communications, "Any law requiring the labeling of foods that contain GMO ingredients creates extra costs for farmers, food manufacturers, distributors, grocers and consumers. The proposal under consideration in Vermont is especially problematic because it puts these additional burdens solely on Vermont's citizens."
Ronnie Cummins, national director of the Organic Consumers Assn., said, "Vermont's landmark victory will force food companies to either label GMOs in all states or reformulate their products to be GMO-free in order to avoid stating 'This product was produced using genetic engineering' on their packaging."
Jim Harrison, president of the Vermont Grocers Assn., said the impact of the rule will be hard to determine until the regulations are promulgated and then implemented.
He said some food companies could choose not to do business in Vermont. "Manufacturers are not likely to ignore states like New York, but a state like Vermont is just a little city," he added.
Harrison said a national, or at least a regional, approach rather than state-by-state laws would allow for easier compliance among food producers.
Rep. Mike Pompeo (R., Kan.) introduced legislation earlier in April that would provide a national, uniform GMO labeling standard rather than a patchwork of state bills and is widely supported by mainstream agricultural groups.
An estimated 29 states have introduced a bill or referendum that calls for labeling GMOs in foods. New York is on the cusp of considering its own law. Oregon also is considering a citizens' ballot initiative in November for GMO labeling.
Even if states have the same goal, lawmakers won't write exactly the same language. Thresholds for the amount of biotech material allowed without requiring a label could differ, as could exemptions, Harrison said.
Cathy Bacon, president of Freedom Foods — which provides product development and co-packing for a large range of specialty foods, including organic, kosher and gluten free — said labeling requirements could put an extra burden on the small companies she services.
Rick Zimmerman, executive director of the Northeast Agribusiness & Feed Alliance, said there eventually could be a demand for non-GM feed as a source for products that would end up in the marketplace. The fact that more than 90% of corn and soybeans grown in the U.S. are biotech varieties creates a challenge in meeting demand.
"If, in fact, a significant increase in demand needed to be met, it could create a seismic shift in production practices," Zimmerman noted, and that, in turn, would reduce the benefits of biotechnology such as reduced pesticide use and improved productivity.
It is estimated that up to 80% of foods contain at least trace amounts of GMOs, and the industry anticipates that labeling could increase costs to consumers by as much as $400 per year.
Legal challenges ahead
An analysis conducted in February 2013 by the Vermont Attorney General concerning its labeling bill stated: "If H. 112 is enacted and a challenge is brought, at least two of the claims will be constitutional claims: First Amendment and Commerce Clause."
Vermont's Attorney General also estimated that it would cost at least $1 million to fight an anticipated industry lawsuit. Within the legislation, Vermont provided a fund to help defend against legal challenges.
Zimmerman said creating a fund in anticipation of a legal challenge "raises a question of whether that's the most prudent approach for Vermont taxpayers to take."
Cummins anticipates that the industry will sue over the law but still thinks it will be upheld.