qrcode_appleIt appears that Vermont’s GMO labeling law, which took effect just two weeks ago, is largely dead.  Congress has passed GMO labeling legislation and, apparently, the President intends to sign it. Here are my initial thoughts on the bill, which you can read for yourself here.

The bill will require that, within the next two years, the Secretary of Agriculture establish a national standard requiring the labeling of “bioengineered food.”  USDA’s regulations won’t take effect for some time after that.

This new federal law preempts state and local laws requiring GMO labeling on any foods sold in interstate commerce. Thus, Vermont’s GMO labeling requirement will be invalidated, except with respect to foods sold only in Vermont. However, there is nothing in the federal statute to block the part of Vermont’s law that prohibits the use of the term “natural” in the labeling of foods produced with genetic engineering. Presumably, the “natural” labeling restriction will stand unless it is struck down by the Court of Appeals in its pending decision in the case challenging the constitutionality of the Vermont law.

It is interesting that the bill charges USDA, not FDA, with responsibility for creating the national GMO labeling standard, especially since the food for which GMO disclosure will be required is limited to products under FDA’s authority, as well as products containing meat or poultry (which are under USDA’s authority), but only if those products are primarily made with non-meat/poultry ingredients. That means many foods containing meat or poultry will not be subject to GMO disclosure requirements. Also, animal products cannot be considered bioengineered just because the animal ate genetically engineered feed.

In terms of other exemptions, USDA may set a threshold amount of GMO material that must be present in a food for a disclosure to be required. Restaurant and similar establishment food also is exempt.

Advocates for GMO labeling are unhappy about these exemptions because foods that many would consider to contain significant genetically engineered material will be exempt from the disclosure requirement. In fact, the law itself provides that:

A food may not be considered to be ‘not bioengineered’, ‘non-GMO’, or any other similar claim describing the absence of bioengineering in the food solely because the food is not required to bear a disclosure that the food is bioengineered under this subtitle.

In other words, not being required to have a GMO label does not necessarily mean that the food is GMO free.

Perhaps the most controversial part of the legislation is that manufacturers required to disclose the presence of GMOs in their products will have the option of doing so with a digital link, such as a QR (quick response) code. If they opt to use a QR code, the label text accompanying the QR code will say “scan here for more food information” or similar language. The law directs USDA to study whether there are technological challenges to consumers accessing disclosures provided through digital links. If it turns out that they are not effective, USDA is required to provide “additional and comparable” methods for consumers to access the GMO disclosure. It is not clear whether, at that point, USDA could require printed text disclosures.