On June 23, 2016, Chairman Pat Roberts and Ranking Member Debbie Stabenow of the Senate Agriculture Committee announced agreement on a bipartisan compromise for labeling of food products containing components that are genetically engineered. This compromise agreement is a significant step forward in an ongoing process that has spanned a number of years. If the Roberts-Stabenow compromise passes the Senate and is reconciled with existing legislation passed by the House of Representatives in July 2015, this could constitute progress toward bringing an end to the controversy over the issue of labeling genetically engineered (GE) foods in the United States.
Aside from the constant social media controversy over so-called Genetically Modified Organisms (GMOs) (see Food Manufacturing, May 24, 2016), the real issue at the federal level is whether there will be a patchwork of varying state GE food labeling requirements or if Congress should act to preempt such state legislation. On July 27, 2015, by a vote of 275-150, the House of Representatives passed H.R. 1599, the Safe and Accurate Food Labeling Act of 2015. H.R. 1599, if enacted, would:
- Mandate that the Food and Drug Administration (FDA) continue its voluntary consultation process for GE foods;
- State that the fact that a food is genetically engineered is not material to a determination as to whether there is a difference between a GE food and a conventional counterpart;
- Allow FDA to require labeling of GE food if there is a material difference in the functional, nutritional or compositional characteristics of the GE food and if the disclosure of such differences is necessary to protect public health and safety;
- Make it unlawful to sell in interstate commerce a food derived from a GE plant unless FDA has determined that the food is safe for humans or animals;
- Require that the U.S. Department of Agriculture (USDA) publish on its website a registry of GE plants that have been evaluated by USDA and FDA;
- Require that within one year of enactment USDA issue “interim final regulations” to carry out the procedures required under the Act; and
- Preempt, as of the date of enactment, any requirement of a state or political subdivision of a state with respect to GE foods that is not identical to the actions of USDA and FDA. H.R. 1599 also would require USDA to establish a national GE food certification program and national standards for the labeling of GE and non-GE foods.
On March 16, 2016, S. 2609, a companion bill in the Senate that would have preempted mandatory state labeling requirements in favor of a standard for voluntary labeling, failed a key procedural step in the Senate (the full Senate failed to invoke cloture). Senators Roberts and Stabenow, however, announced a compromise proposal on June 23, 2016. In contrast to H.R. 1599, the Senate bill would require mandatory disclosure for foods containing GE components. Within two years of enactment, USDA would be required to promulgate regulations establishing a mandatory disclosure standard for “bioengineered food.” Any disclosure that a food is bioengineered could only be in accordance with USDA’s regulations. The regulations must require that disclosure be either in the form of text, symbol, or an electronic or digital link, with the option to be selected by the food manufacturer. The regulations must prohibit food from animals consuming GE feed from being considered to be bioengineered and must exclude food served in restaurants. Similar to H.R. 1599, the Senate bill would mandate that any bioengineered food that completes the federal pre-market review not be treated as less safe or safer than a non-bioengineered conventional counterpart. The proposal includes a strong preemption provision that prohibits any state or political subdivision of a state from establishing or continuing in effect any requirement relating to labeling of whether a food is genetically engineered or was developed or produced using genetic engineering. Significantly, the proposal’s federal preemption provision applies to “genetically engineered” foods, whereas the mandatory disclosure regulations to be promulgated by USDA apply to “bioengineered” foods. As defined in the proposal, bioengineered foods is a much more limited universe of food products than genetically engineered foods. The proposal also provides that any food that can be labeled as organic under the USDA’s national organic standard can also be labeled “not bioengineered,” “non-GMO,” etc.
It remains to be seen whether this compromise can garner sufficient support in the Senate to pass that chamber. A number of groups are lining up against the proposal, many of which are opposed to the option allowing use of electronic or digital links for disclosure. If the proposal is passed by the Senate, it must be reconciled with the more expansive House bill. Given the Congressional calendar, passage by the Senate and reconciliation of the House bill must occur within a short legislative window. Nonetheless, the compromise bill worked out by Senators Roberts and Stabenow is a significant step forward in the long process of developing a rational labeling policy for GE foods in the United States.
Passing a national standard for labeling of GE foods is urgently important because on July 1, 2016 a mandatory GE labeling requirement goes into effect in Vermont. The Vermont law requires covered foods to have labeling indicating that it is either “entirely or partially produced with genetic engineering.” Relevant raw agricultural commodities must be labeled as “produced with genetic engineering.” Covered processed foods must be labeled “partially produced with genetic engineering,” “may be produced with genetic engineering” or “produced with genetic engineering.” The law also prohibits use of the word “natural” or any “words of similar import” on product labels or advertising of covered foods.
With the House adjourned for recess until July 5, 2016, no federal law will be enacted prior to July 1. Thus, those food companies opting to continue to do business in Vermont will have to meet the requirements of the Vermont law, at least temporarily. Moreover, passage of a federal GE foods labeling statute that preempts state labeling requirements would likely moot the appeal of Vermont’s law that is currently before the Second Circuit (GMA, et al. v. Sorrell, Case No. 15-1504).