On July 7, 2016, the Senate passed a compromise GMO labeling measure led by Senate Agriculture Committee Chairman Pat Roberts (R-KS) and Ranking Member Debbie Stabenow (D-MI) by a vote of 63-30. The bill would preempt Vermont and other states and localities from establishing or implementing conflicting GMO labeling laws by requiring the U.S. Department of Agriculture (USDA) to establish a mandatory GMO labeling standard within two years after enactment. The bill intends for manufacturers to then label packages of food products with text, a symbol, or a Quick Response (QR) code or similar technology. (Read our June 27 blog post for more information about the bill.)

The House will need to consider the bill, but will likely take it up in September because its recess starts the week of July 17. Last July, the House passed its GMO labeling preemption bill (H.R. 1599) that would allow manufacturers to voluntarily label their food products -- instead of being required to label -- under the jurisdiction of the Food and Drug Administration (FDA). House Agriculture Committee Chairman Mike Conaway (R-TX) has indicated that leadership is determining its strategy and considering all options, but has provided no further detail.

Although passage of the Senate bill required a simple majority, Sens. Roberts and Stabenow faced challenges from opponents on both sides of the aisle. Opponents notably argued that the bill’s definition of “bioengineering” would create consumer confusion and that the digital disclosure option could limit consumers’ access to information. Vermont Sens. Patrick Leahy (D) and Bernie Sanders (I) attempted to hold up the bill in protest of Majority Leader Mitch McConnell’s (R-KY) decision not to consider amendments.

Disagreement over key provisions of the bill extends to USDA and FDA, which may inform some of the challenges USDA will face in implementing the bill should it be enacted. FDA contends that genetically engineered foods (“GE”) do not pose any safety concerns and, for that reason, GMO labeling should remain voluntary. FDA also contends that the QR code option conflicts with the agency’s statute and regulations requiring disclosures directly on food labels.

FDA also believes the bill’s mandatory disclosure standard would conflict with FDA’s labeling requirements at times. For example, depending on USDA’s GMO labeling requirements for small packages, manufacturers may have difficulties including both the USDA information and the FDA required statements on the label.

FDA also finds the definition of “bioengineering” in the bill to be narrow in scope, which could lead to consumer confusion. The agency points to the phrase “that contains genetic material” and argues that foods from GE sources (e.g., GE soy, starches, and purified proteins) will fall outside of the scope. USDA disagrees with FDA’s interpretation. USDA asserts that it has the authority to require GMO labeling on food products with ingredients from commercially grown GMO crops, but the agency would consider its authority to determine the threshold of bioengineered material needed for foods to be regulated under the legislation.

Additionally, FDA has concerns with the bill limiting its application to foods where the genetic modification “could not otherwise be obtained through conventional breeding or found in nature,” because this would be difficult to prove.

While waiting for the House’s consideration, manufacturers should evaluate their compliance with the Vermont law, which took effect on July 1. As we noted previously, the Vermont law presumes compliance for foods distributed before July 1, 2016 and sold for retail until January 1, 2017. By contrast, foods produced before July 1, 2016, but distributed after that date, will be subject to penalties. The Vermont Attorney General may enforce the law today, but private rights of action may not be brought until July 1, 2017.