By Scott Hendrick
On May 8, Vermont became the first state to enact a law requiring labeling of foods with genetically modified ingredients. But soon after Governor Peter Shumlin signed H.B. 112, several companies announced their opposition to the new law, with at least one—the Grocery Manufacturers Association—promising to file suit to stop it.
The forthcoming legal battle may provide clarification to legislators, consumers, industry and others on the extent to which legislatures can mandate GMO labels for foods and other products sold in their states.
Set to go into effect on July 1, 2016, Vermont’s new labeling requirements would mandate that all retail foods that have been entirely or partially produced with genetic engineering contain a label “with the clear and conspicuous words ‘produced with genetic engineering.’ ” It also prohibits those foods from being labeled as “natural,” “all natural” or “naturally grown.”
Proponents of the bill see GMO labels as a matter of consumer choice, giving food purchasers information they can use to make decisions about the products on store shelves. Opponents note that state-based GMO label requirements could increase food costs by as much as $400 per household per year and create significant difficulties for farmers, food manufacturers and grocers who might have to comply with a patchwork of different state requirements. For its part, the U.S. Food and Drug Administration has determined that genetically-engineered (GE) foods are not materially different from non-GE foods and thus the agency has not required GMO products to be labeled as such.
While Vermont’s law is the first in the nation with a set effective date, GMO labeling laws have been passed in Connecticut and Maine that could take effect if enough other states similarly act. Connecticut H.B. 6527 (enacted June 25, 2013) requires four other states to adopt similar legislation before its GMO labeling requirements become law. Maine H.B. 490 (enacted Jan. 12, 2014) requires passage by four other contiguous states before it takes effect. Twenty-eight other states have had GMO labeling legislation pending in 2014, although to date none of these other bills have passed. A pending federal bill in Congress, The Safe and Accurate Food Labeling Act of 2014 (H.R. 4432), would establish a voluntary labeling program under a single federal standard and give the U.S. Food and Drug Administration sole authority require such labels in the future.
The looming court battle over Vermont’s law will likely revolve around issues of free speech, federal preemption and interstate commerce. Are Vermont’s labeling requirements providing factual information about a product to curb consumer confusion, or do they restrict commercial free speech under the First Amendment? Does Vermont have authority to pass state-based GMO labeling requirements, or does current federal labeling laws and regulations preempt the state from acting? Does the law unfairly interfere with interstate commerce, or are there legitimate state interests achieved by the law that outweigh any burdens on commerce?
How the courts rule on these issues will likely shape the future of state efforts to require GMO labels on foods. In the meantime, NCSL will continue to closely monitor this issue. The biotechnology section of our agriculture legislation database tracks all state GMO legislation. And NCSL’s 2014 Legislative Summit will feature a session that will bring together experts from both sides to debate this issue. Join us in Minneapolis Aug. 19-22 to learn more about this developing topic.
Scott Hendrick is a program director in NCSL's Environment, Energy and Transportation Program.