On Thursday, June 23, 2016, United States Senators Debbie Stabenow (D-MI) and Pat Roberts (R-KS) reached a bipartisan agreement which would amend the Agricultural Marketing Act of 1946 to require the Secretary of Agriculture to establish the first mandatory, nationwide labeling standard for bioengineered foods.1 The bill, which would fall under the jurisdiction of the United States Department of Agriculture (USDA), would require USDA to establish regulations to implement the law if passed. The bill requires the mandatory labeling standard to be established no later than 2 years after the date of enactment and would be effective at least 1 year after publication of the standard. For small food manufacturers, the implementation date would be no earlier than 1 year after the implementation date for regulations promulgated in accordance with the bill.

Importantly, since the bill is not yet law, it does not impact Vermont's labeling law for bioengineered foods, which goes into effect on July 1, 2016. Prior to enactment, the bill must pass the Senate and the House of Representatives and be signed into law by President Obama. However, if this bill does become law it will preempt Vermont's requirements.

Foods that are covered by the Bill

The mandatory labeling requirement would apply to food regulated under the Federal Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. 301 et seq.). Additionally, the mandatory labeling requirement would apply to food subject to the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451 et seq.), or the Egg Products Inspection Act (EPIA) (21 U.S.C. 1031 et seq.) but only if (a) the most predominant ingredient would independently be subject to the labeling requirements of the FDCA; or (b) the most predominant ingredient is broth, stock, water, or a similar solution, and the second-most predominant ingredient would independently be subject to the FDCA. Thus, the bill subjects all FDA regulated foods and certain USDA regulated foods that contain lower levels of meat, poultry or egg to mandatory disclosure of bioengineered content. In addition, USDA will have the authority to establish a process by which they can determine whether a food is bioengineered based on the amount of bioengineered content. Finally, exemptions from the requirements would apply to food derived from an animal where the sole nexus to bioengineering is the animal's consumption of bioengineered feed, food served in restaurants or retail food establishments, and very small food manufacturers.

Format of Disclosure

The bill requires bioengineered food disclosures to be presented as "a text, symbol, or electronic or digital link", but excludes website URLs not embedded in the link. On-package language would be required to accompany electronic or digital link or telephone number disclosures to indicate the availability of additional information. Electronic or digital link disclosures would need to be of sufficient size to be easily and effectively scanned or read by a digital device. Additional disclosure options may become available if the Secretary of Agriculture determines a need for other options to access the bioengineering disclosure. Of the above identified disclosure options, food manufacturers would be able to select their disclosure format. Small or very small food packages would have alternative reasonable disclosure options. Small food manufacturers would have on-package disclosure options, in addition to text, symbol, or electronic or digital link options, which would consist of a telephone number accompanied by language indicating that the phone number provides additional information and a website maintained by the small food manufacturer.

Preemption, Organic Foods and Use of Non-GMO Claims

The bill provides for federal preemption of any state or local law that directly or indirectly establishes bioengineered labeling or disclosure requirements. Additionally, the bill requires the Secretary of Agriculture to establish consistency between the proposed bioengineered food labeling and disclosure standards and the Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 6501 et seq.). Foods certified under OFPA would be allowed to make claims regarding the absence of bioengineering in food, such as "not bioengineered," "non-GMO," or another similar claim. However, foods not required to bear bioengineered labeling do not automatically qualify to make claim regarding the absence of bioengineered material (e.g., "not bioengineered," "non-GMO"). Finally, the bill is silent as to whether "natural" claims can be used on bioengineered foods.

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Keller and Heckman will continue to monitor and report on the status of GMO labeling at the state and federal levels as it continues to evolve.