GMO Disclosure Bill Awaiting President Obama's Signature

July 14, 2016 | Kristine A. Tidgren

Note: President Obama signed this legislation on July 29, 2016.

It’s legislation that completely satisfies no one. However, to the majority of lawmakers, it is a better choice than the prospect of food manufacturers, producers, and retailers facing 50 different standards for disclosing the presence of genetically engineered ingredients in food. As such, S.764 garnered enough support to easily pass the House today, 306-117. This followed passage of the bill in the Senate last week by a vote of 63-30. The White House has indicated that President Obama will sign the bill into law. If enacted, the bill’s actual impact may not be known for several years, until the USDA issues the regulations required to implement it. The bill relies heavily on USDA interpretation and discretion to implement its new standard.

Overview of the Bill

Although commonly referred to as the “GMO disclosure bill” or the “GMO labeling law,” the title of the measure passed by the House today is the National bioengineered food disclosure standard. If signed by the President, this measure will set a new nationwide standard for the disclosure of the presence of “bioengineered” ingredients in food. The bill applies its disclosure standard to foods that manufacturers are currently required to label under the Federal Food, Drug, and Cosmetic Act. It only requires disclosure as to meat, poultry, or egg products where meat, poultry, or eggs is not the predominant ingredient.

Federal Preemption

Key to its passage, the bill contains a preemption clause, prohibiting states from enacting or enforcing laws requiring the labeling of “genetically engineered” foods. Consequently, the bill (when enacted) will preempt or invalidate Vermont Act 120, the first GMO labeling law to “go live” in the U.S. The law was effective July 1, 2016.   

Bioengineering v. Genetic Engineering

The bill, which was a compromise between Senators Debbie Stabenow and Pat Roberts, would make “bioengineering,” not “genetic engineering” the subject of its disclosure requirements. “Bioengineering” is defined in the bill as food that:

  1.  contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and
  2. for which the modification could not otherwise be obtained through conventional breeding or found in nature.

What does that mean? While the full extent of the meaning of this hyper-technical definition won’t be known until after USDA issues mandated regulations (and even then, the water may still be a bit muddy), the agency did provide some recent insight as to its interpretation. In a July 5 letter, the USDA stated that the “bioengineering” definition would cover “products which may or may not contain highly refined oil, sugars or high-fructose corn syrup that have been produced or developed from genetic modification techniques.”  The letter also stated that the bill provides authority to regulate “all of the commercially grown GMO corn, soybeans, sugar, and canola crops used in food today.” USDA wrote the letter in response to questions posed by Senator Stabenow after concerns arose that the definition would be so restrictive as to exempt most food products containing genetically-modified ingredients, like oil made from genetically engineered soybeans or high fructose corn syrup made from genetically engineered corn.

Bill Relies Greatly on USDA Discretion

The letter did little to quell concerns among many that the impact of the legislation will rely heavily on the discretion of the USDA in crafting its regulations.

Yet those supporting the bill—and it garnered a large majority of support in both the House and the Senate—are just glad to have averted a frequently-cited “50-state patchwork” of laws and regulations for companies to navigate.  

As noted, USDA will have great discretion in implementing this pending law. The bill directs the agency to establish these regulations within two years of enactment.  The bill gives little more than general guidance as to the specifics that must be included in the regulations. USDA would have its hands full. Specifically, the bill requires USDA through regulation to:

  • Prohibit food derived from an animal (i.e. milk) to be considered “bioengineered” solely because the animal ate food containing a bioengineered substance
  • Determine the amounts of “bioengineered” substance that must be present in order for the disclosure requirement to kick in
  • Establish a process for requesting and granting a determination from the USDA regarding whether a food is considered “bioengineered”
  • Require that the form of required disclosure may be text, symbol, or electronic or digital link
  • Provide alternative reasonable disclosure options for food contained in “small or very small packages”
  • Provide special accommodation for “small food manufacturers,” including:
    • Allowing small food manufacturers at least one year after the issuance of the regulations to comply with the law
    • Allowing small food manufacturers an alternative means of disclosure, including a telephone number or internet website address printed on the package for further information.
  • Exclude restaurants from compliance
  • Exclude “very small food manufacturers” from compliance

There is no definition for “small” or “very small” in the text of the legislation. As such, the regulations will no doubt define those terms as well.

No Label Required

A most contentious part of the pending law is that it would not require a label disclosing the GMO status of the food on the package. Rather, as noted above, the disclosure of the presence of “bioengineered” ingredients could be made by text, symbol, or digital link. This digital link would be a quick response (QR) code that consumers could scan with a smart phone. Critics claim this allowance negates any potential benefit from the legislation and have consequently called the bill the “Dark Act.”

Study Required

The bill also directs USDA to (within a year) conduct of study to identify potential technological challenges that may impact whether consumer would have access to the disclosure through digital means. If the study reveals that consumers will not have sufficient access to the disclosure, the agency “after consultation with food retailers and manufacturers” is to provide “additional and comparable options.”

What Are the Consequences?

One concern of GMO labeling proponents is that the new law would have no teeth. The bill states that “it shall be a prohibited act” to fail to make a required disclosure. It does not, however, list a penalty for violating the provisions. Although the USDA is given the authority to audit companies with respect to their compliance (subject to notice and an opportunity to be heard) the bill specifically states that USDA has no authority to recall food based upon an absent disclosure. In contrast, the Vermont law imposes a $1,000 penalty per day per product for labeling violations.

While it looks certain that this new standard will be enacted, we’ll have to wait for President Obama’s signature to be sure.

We’ll keep you posted!