We have previously discussed the provisions of the National Bioengineered Food Disclosure Standard (S. 764) in a client alert titled "United States Senate Reaches Bipartisan Agreement to Establish First Mandatory, Nationwide Labeling Requirements for Bioengineered Foods," which is available here.

On July 29, President Barack Obama signed S. 764 into federal law.1 The new law clearly preempts Vermont's genetic engineering (GE) labeling law. There are two express preemption provisions in the law.

First, Section 293(e) states that "no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirements relating to the labeling or disclosure of whether a food is bioengineered or was developed or produced using bioengineering for a food that is the subject of the national bioengineered food disclosure statement under this section that is not identical to the mandatory disclosure requirements under that standard." This preemption provision is limited to the foods covered by the federal law, which include products regulated by the Federal Food and Drug Administration (FDA) and some products regulated by the U.S. Department of Agriculture (USDA) but only where an FDA regulated food is the first ingredient or the first ingredient is broth, stock, water or a similar solution and the second ingredient is an FDA regulated product.

Second, Section 295 states that "[n]o State or a political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food or seed in interstate commerce any requirement relating to the labeling of whether a food (including food served in a restaurant or similar establishment) or seed is genetically engineered (which shall include such other similar terms as determined by the Secretary of Agriculture) or was developed or produced using genetic engineering, including any requirement for claims that a food or seed is or contains an ingredient that was developed or produced using genetic engineering." This provision is broader than Section 293(e) and appears to preempt all state GE labeling laws, including the current Vermont GE labeling law.

While it is clear that the federal law preempts Vermont's GE labeling law, it is less clear whether food companies will abandon the GE labeling that has already been developed to meet Vermont's GE labeling law. Many companies have already printed labels to comply with Vermont's GE labeling law and rolled out national GE labeling efforts. It is possible that they will continue to provide GE labeling on their labels or run through labels that have already printed and then wait for the USDA to implement the mandatory GE labeling rules at the federal level. The conversation now shifts to USDA as they promulgate rules to implement the mandatory bioengineered food labeling program.