Vermont Passes First in the U.S. GMO Labeling Law

On May 8, 2014, Vermont Governor Peter Shumlin signed into law H.112, “An Act Relating to the Labeling of Food Produced with Genetic Engineering.” Under the legislation, specified food products produced with genetic engineering must be labeled as such effective July 1, 2016.  The required label on a covered food product must denote that a covered raw agricultural commodity was “produced with genetic engineering” or (for processed foods) was “partially produced with genetic engineering” or “may be produced with genetic engineering” or “produced with genetic engineering.”   The legislation also prohibits a manufacturer of a food product from labeling that product as “naturally made,” “naturally grown,” “all natural” or with similar words if the food product is produced entirely or in part from genetic engineering. Under the law, “natural” is defined as a product that was not produced through genetic engineering.   

A majority of states in recent years have considered genetically modified organism (GMO) labeling legislation, and bills requiring mandatory labeling have been introduced into the Congress.  Presently, it is estimated that over 70 percent of processed foods in grocery store include at least one GMO ingredient.  Most commonly, GMO crops include corn, soybeans, cotton and canola. Under current law, the U.S. Food and Drug Administration (FDA) requires a GMO label on food products that have a significantly different nutritional property or allergenic difference.

The Vermont legislation also establishes a “Genetically Engineering Food Labeling Special Fund” to pay costs associated with the implementation and administration of the law and any anticipated legal costs necessary to defend the law against food industry legal challenges.  

It is anticipated that the food industry and its lobby groups will challenge the law, most likely on First Amendment (speech) and interstate commerce grounds.  However, Vermont is located in the Second Circuit, a Circuit where rational basis review would be applied to determine the constitutionality (on First Amendment grounds) of the law.  Under that approach, so long as the Vermont legislature had some rational purpose to the law that was connected to the means utilized to achieve that purpose, the law will withstand scrutiny.  That’s a fairly low threshold for compelled factual speech to clear that is designed to further the public’s health and safety.  On the interstate commerce issue, there is nothing in the law that singles out Vermont-based companies for the labeling requirement.  The law states that it applies to “food offered for resale by a retailer” irrespective of the location of the retailer.  Thus, the law treats in-state and out-of-state retailers the same. 

The issue of GMO labeling is sure to continue to be controversial.  But, like the current legal challenges surrounding Country of Origin Labeling, government can require private businesses to provide fact-based information to consumers if the public is served.  Whether the public is served by GMO labeling will ultimately be decided by the courts.

Here’s the link to the H.112:  http://www.leg.state.vt.us/docs/2014/bills/Passed/H-112.pdf