Unless you have been living under a rock, you know that a battle is brewing over labeling foods which contain genetically modified ingredients. According to a recent New York Times poll, 93% of American consumers favor labeling of some type for foods that contain genetically modified organisms (GMOs).  July 27, 2013 NYT Poll.  In 2012, California voters narrowly rejected a GMO labeling law. In 2013, Connecticut and Maine became the first states to pass bills requiring labels on all foods made from GMOs, but these laws don’t become effective until surrounding states pass similar legislation.  A total of twenty-six states considered some form of GMO labeling legislation in 2013. State Labeling Initiatives, CTR. FOR FOOD SAFETY. On May 8, 2014, Vermont’s governor signed H.B. 112 which requires the labeling of food containing genetically modified ingredients sold in Vermont.  An Act Relating to the Labeling of Food Produced with Genetic Engineering, H.B. 112, 2013-2014 Leg. Sess. (Vt. 2014). On July 23, 2014, Oregon placed a GMO labeling initiative on its November 2014 ballot in what is likely to be an expensive fight on both sides of the issue.  Jeff Mapes, “GMO Labeling Initiative Qualifies for Oregon Ballot.” The Oregonian, July 23, 2014 (noting that backers of the labeling measure have already raised $1.3 million to support its passage.) On the federal side, Congress is facing pressure to enact legislation establishing a nationwide standard for labeling foods made with genetically modified ingredients. See, the Safe and Accurate Food Labeling Act of 2014 (introduced by U.S. Rep. Mike Pompeo (R-KS)) and the Genetically Engineered Food Right-to-Know Act (introduced by U.S. Rep. Peter DeFazio (D-OR)). Outside of the United States, sixty-four countries currently require some sort of labeling for genetically engineered foods. International Labeling Laws, CTR. FOR FOOD SAFETY.

As we wade into the debate over GMO Labeling, it is helpful to have an understanding of the existing federal regulatory labeling standards that apply to foods containing GMOs. The federal standards are particularly important in what is looking to be more and more a battle of state versus federal rights in food labeling. So to start with, lets look at the current federal labeling requirements.

The Federal Regulatory Environment over Food Labeling. When it comes to food labeling, the Federal Trade Commission (FTC), the Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA) share jurisdiction over the regulation of food labels. The USDA primarily regulates the labeling of meat, poultry and egg products as well as organic food. A Guide to Federal Food Labeling Requirements for Meat, Poultry, and Egg ProductsLabeling Organic Products.  The FTC Act prohibits “unfair or deceptive acts or practices” and “false advertisements” that are “misleading in a material respect” concerning food products. Similarly, Section 403(a) of the Federal Food, Drug and Cosmetic Act (FDCA) prohibits “labeling [that] is false or misleading in any particular.”  The FTC and FDA operate under a Memorandum of Understanding under which the FTC has taken primary responsibility for regulating food advertising while the FDA takes regulatory authority over food labeling.

Under the FDA’s 1992 policy on foods derived from biotechnology, the name of a bioengineered food must be changed only if it is significantly different from its traditional counterpart, the bioengineered food has a significantly different nutritional property or the bioegineered food includes an allergen that consumers would not expect to be present (e.g., soybeans that contain peanut allergens). In 2001, the FDA issued its draft Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering. The FDA’s draft guidance focuses on specific labeling statements such as “GMO Free” and when the FDA might consider these labeling statements misleading. Claiming that a food is not bioengineered may be misleading if (1) the statement suggests that the labeled food is better than foods not so labeled; (2) if the statement suggests that one ingredient in the food is not bioengineered, but another ingredient in the food is bioengineered and that is not disclosed; or (3) if the statement suggests that the food is not bioengineered when there are no marketed varieties of the food that are bioengineered. Finally, if a manufacturer claims that a food is not bioengineered, the manufacturer  should be able to substantiate that the claim is truthful and not misleading. Similar to the FDA, the FTC requires that a manufacturer must have a “reasonable basis” for claims made in advertisements.

While federal regulatory agencies allow non-GMO food manufacturers to make certain claims regarding GMO foods, those standards are not mandatory and do not require that foods containing GMO ingredients be labeled as such. So, if a manufacturer produces a non-GMO product and wants to label it as not containing GMO ingredients, within the limits of these regulations the manufacturer is free to do so. As a result, entities like the Non-GMO Project currently provide a verification process to allow manufacturers to make non-GMO claims in compliance with current federal regulations. Importantly, though, the current debate seeks something more than a non-mandatory standard. The state law GMO labeling legislation seeks to proactively require that GMO foods be identified as containing GMO ingredients. Further, since state laws can vary in their requirements for GMO labeling, this is an area where federal legislation may ultimately pre-empt the field and establish a singular national standard. When it comes to GMO claims, states may find that they are at a disadvantage if the federal government enacts a national uniform labeling requirement.