Yesterday, Senate Agriculture Committee Chairman Pat Roberts (R-KS) and Ranking Member Debbie Stabenow (D-MI) released their long-awaited bill that would establish a federal GMO labeling regime and preempt any state laws, such as Vermont’s Act 120. This legislation, unlike earlier attempts, is expected to garner enough support to gain enough support to pass in the Senate. However, with the House on recess until July 5th, the bill will not stop Vermont’s GMO-labeling law from going into effect, at least temporarily, on July 1st.
Here are a few of the highlights of the proposed legislation:
- Mandatory Labeling – The bill would provide for mandatory labeling of many food products for human consumption that are sold in retail establishments (e.g. grocery stores, convenience stores). The labeling regime would apply to FDA-inspected products as well as FSIS-inspected products that do not contain meat or poultry as the top ingredient (e.g., chicken noodle soup).
- Heavy Reliance on USDA Rulemaking – The bill would provide USDA 2 years to develop regulations to implement a national GMO-labeling standard. USDA will be charged with determining the threshold of biotech content that would trigger labeling, establishing a process for determining whether a product is bioengineered, and developing a labeling standards (e.g., text, symbols). USDA will also define “small food manufacturers” and “very small food manufacturers.
- What Will Labeling Look Like? – The bill provides that biotech content can be disclosed through text, a USDA-developed symbol, or an internet link encoded onto packaging. USDA will also develop regulations to address accommodating labels on small packages.
- State Preemption – The bill would, upon enactment, immediately preempt any state GMO-labeling measures. The most immediate effect would be to preempt Vermont’s Act 120, which will go into effect on July 1st.
- Exclusions – The bill does not apply to foods sold in food service or foods produced by those defined as very small food manufacturers. The bill also does not apply to foods intended for animal consumption.
- Animal Products – Consuming GE feed does not serve as a basis for deeming products derived from animals (e.g. milk, eggs, meat) bioengineered. If meat or poultry is the primary ingredient in a processed food, that food would not need to be labeled as bioengineered.
- Non-GMO Labeling – The bill provides that USDA Organic products can be labeled as “non-GMO.” However, the bill also declares that a product cannot be labeled “non-GMO” solely on the basis that the product is not required to be labeled under the bill. This indicates that there may need to be some form of substantiation for labeling products that do not contain GE ingredients but are not USDA Organic.
- Timelines – If enacted, USDA will have two years to develop its regulations to implement the labeling regime. The bill does not specify how soon manufacturers would have to comply with the labeling law after USDA promulgates its regulations – that will be up to USDA. However, those companies deemed small food manufacturers will have an additional year to comply with the labeling regulations.
The proposed legislation has received the support of a number of food industry groups, as well as the Organic Trade Association. Several pro-labeling groups have come out in opposition to the legislation because it provides manufacturers with the option of using QR codes. Despite this opposition, the measure is likely to pass the Senate. The House previously passed a voluntary labeling measure in 2015. Although this bill would require mandatory labeling, industry support and the desire to preempt a 50-state patchwork of labeling laws may provide the impetus to gain bipartisan approval and bring this measure to the President’s desk. However, the present dynamics within the House of Representatives make it difficult to predict any legislative outcome with certainty.
It should also be noted that the Second Circuit Court of Appeals is still considering the food industry’s challenge to Vermont’s Act 120 on constitutional grounds. The court may issue a decision that is of constitutional import to both Vermont’s law and the Roberts – Stabenow proposal. However, if Roberts – Stabenow is enacted, the court may deem the challenge to Vermont’s law as moot.
