Vermont has become the first state in the nation to enact a law requiring labeling of genetically engineered foods. (Connecticut and Maine has enacted labeling laws, but their laws do not go into effect unless a critical mass of neighboring states enact similar requirements.) On April 23, 2014, the Vermont state legislature passed H.112 requiring raw agricultural commodities and processed foods offered for sale in Vermont retail stores, with certain exceptions, to bear special labeling if they are entirely or partially produced with genetic engineering. Governor Peter Shumlin signed the bill into law yesterday. The labeling requirement will become effective on July 1, 2016.
The Vermont law requires that raw agricultural commodities (e.g., whole ears of corn) that are genetically engineered be labeled “produced with genetic engineering.” Processed foods must be labeled “partially produced with genetic engineering,” “may be produced with genetic engineering,” or “produced with genetic engineering.” In the case of processed foods and packaged raw agricultural commodities, compliance is the obligation of the manufacturer. In the case of unpackaged raw agricultural commodities sold in bins, compliance is the retailer’s responsibility.
The Vermont Attorney General may, by regulation, require that the label statement include a disclaimer stating that the Food and Drug Administration does not consider foods produced using genetic engineering to be materially different from other foods.
Exemptions include the following:
- Foods derived entirely from an animal which was not genetically engineered (GE), even if the animal was fed GE feed;
- Animal feed and pet food;
- Foods whose only GE content is a GE enzyme or processing aid;
- Alcoholic beverages;
- Restaurant foods and other foods served in establishments for immediate consumption;
- Medical foods;
- Processed foods that contain 0.9% or less GE content by weight;
- Foods produced without the knowing or intentional use of genetic engineering; and
- Foods verified by an independent organization as produced without the knowing or intentional use of genetic engineering.
H. 112 also prohibits “natural,” “all natural,” and similar claims in labeling or advertising for foods produced entirely or partially from genetic engineering.
It is anticipated that the Vermont law will be challenged in court. We think it is vulnerable to a legal challenge on grounds of federal preemption and violation of the First Amendment and Commerce Clause of the U.S. Constitution.
