Proposed Senate Biotech Deal Would Preempt Vermont GMO Law: Will It Pass?

June 24, 2016

On June 23, 2016, Senate lawmakers agreed to a bipartisan proposal to require the first nationwide, mandatory disclosures for food containing genetically modified organisms (GMOs), or “bioengineered” ingredients, as they would be labeled under the bill.  If enacted, the legislation would preempt Vermont’s first-in-the nation mandatory GMO labeling law, Act 120, which goes into effect on July 1.  Among other things, the proposed legislation released yesterday would require mandatory disclosures in the form of text, symbol, or electronic or digital link on all foods produced with “bioengineering.”    

It is unclear when this new proposal will come to a vote.  There have been differing reports about when the Senate might take up the proposal, and the House of Representatives has adjourned until July 5.  With Congress out of session during the party conventions in late July and in recess in August, there will be a short time frame for Congress to pass the measure if it is to get done before the fall. 

At least for now, Vermont’s Act 120 is still expected to go into effect in Vermont on July 1.  A request to preliminarily enjoin the law remains pending before the U.S. Court of Appeals for the Second Circuit.

Here are the highlights from the proposed legislation:

  • The bill would amend the Agricultural Marketing Act of 1946 to require the Secretary of Agriculture, within two years after enactment, to establish a “national mandatory bioengineered food disclosure standard” for any “bioengineered” food.  A food could only bear a disclosure that it was bioengineered consistent with regulations issued under the proposed law.
  • “Bioengineering” is defined to include food containing genetic material that has been modified through in vitro recombinant DNA techniques, as well as food “for which the modification could not otherwise be obtained through conventional breeding or found in nature.”
  • The bioengineering disclosures would be required on any food that is subject to the labeling requirements of the Food, Drug and Cosmetic Act (FD&C Act).  Foods that are subject to the Federal Meat Inspection Act, the Poultry Products Inspection Act or the Egg Products Inspection Act also would be covered, but only if (i) the most predominant ingredient of the food would independently be subject to the FD&C Act or (ii) the most predominant ingredient is broth, stock, water, or a similar solution, and the second most predominant ingredient would be subject to the labeling requirements of the FD&C Act.  (Animal products and foods bearing USDA-approved labels are exempt from the labeling requirements under the new Vermont law.  Bottom line: Frozen pizzas with meat would be covered here, but not under the Vermont law.)
  • Foods could not be labeled as bioengineered solely because the animal consumed feed containing or produced from bioengineering.
  • Regulations would be issued to define how much of a bioengineered substance a food could contain before being classified as a bioengineered food.
  • Bioengineered food would be labeled by a disclosure in the form of text, symbol, or electronic or digital link, at the option of the manufacturer.  Electronic or digital link disclosures would be accompanied by text such as “Scan here for more food information,” and each link would provide access to a bioengineering disclosure on an Internet landing page.  A link disclosure also would include a telephone number for consumers to access the bioengineering disclosure.
  • No state or locality could establish any requirement relating to the labeling or disclosure of whether a food is bioengineered or developed or produced using bioengineering if the requirement is not identical to the federal disclosure standard.  States would be permitted to provide remedies (e.g., under consumer protection laws) for violations of the national standard.
  • A separate subtitle in the new proposal preempts any state or locality from requiring the labeling or disclosure of whether a food or seed is “genetically engineered” or was developed or produced using “genetic engineering.”  These terms are not defined in the proposal, but this provision appears to be intended to preempt any state laws requiring labeling for “genetic engineering,” even if the food is not one subject to the new national disclosure standards.  It will be worth watching to see how these provisions are clarified as the proposal develops.  
  • Foods certified under the USDA national organic program would be permitted to bear claims such as “not bioengineered,” “non-GMO” or something similar.

The proposed legislation offers the potential for uniformity and some flexibility for food manufacturers.  We will be watching over the weeks ahead as this continues to develop.