On Wednesday, April 23, 2014, Vermont’s House of Representatives passed H.B. 112, [ enhanced version available to lexis.com subscribers], legislation that would require the labeling of food produced entirely or partially from Genetically Modified Organisms (GMOs) by July 1, 2016. The Vermont Senate approved H.B. 112 on April 15, 2014. Vermont’s Governor, Peter Shumlin, already announced his intention to sign the bill; therefore H.B. 112 will very likely become law.
Two other states, Connecticut and Maine, have already passed laws mandating GMO labeling, however those laws have implementation schemes that are conditioned on other neighboring states passing similar legislation and thus are not yet effective. Federal law does not currently require GMO labeling because FDA has determined that GMO ingredients do not inherently pose special safety or health risks to human beings, that the existing regulatory framework provides sufficient authority to ensure safety, and that food derived from GMO ingredients does not require special labeling unless it differs significantly from its conventional counterpart.
Notable Provisions of H.B. 112
Section 3403 sets forth the GMO labeling requirements in Vermont. Foods that are produced entirely or partially with genetic engineering must be labeled as follows:
• Packaged raw agricultural commodity (RAC): “produced with genetic engineering” on package.
• RAC that is not packaged: “produced with genetic engineering” posted on label on retail store shelf or bin.
• Processed food that contains a product or products of genetic engineering: “partially produced with genetic engineering,” “may be produced with genetic engineering,” or “produced with genetic engineering.”
Genetic engineering is defined as a process by which a food is produced from an organism or organisms in which the genetic material has been changed using rDNA technology or fusion cell techniques. One question raised by the legislation is whether it is drafted broadly enough to include processed foods that contain ingredients that were derived from GMOs even if the processed foods do not contain any detectable levels of GM material or protein. Are these foods truly partially produced with genetic engineering?
Prohibition on “Natural” Labeling
H.B. 112 would prohibit the manufacturer of foods produced with GMOs from labeling the food as “natural,” “naturally made,” “naturally grown,” “all natural” or similar terms that “would have a tendency to mislead a consumer.” The “natural” labeling prohibition would not apply, however, to any product subject to an exemption from the labeling mandate.
Like most other state GMO labeling bills, H.B. 112 provides exemptions from the labeling requirements to a number of products, including: food derived from animals fed GMO food, processed food that contains processing aids or enzymes produced with genetic engineering, alcoholic beverages, food containing less than 0.9% by weight of materials produced with genetic engineering, food certified by an independent organization as being GMO free, food intended for immediate human consumption or food served in restaurants, and medical food.
H.B. 112 would also exempt from the labeling requirements food produced without the knowing or intentional use of GMO ingredients. Food will only be deemed to be produced without the knowing or intentional use of GMO ingredients if a sworn statement is obtained from a supplier indicating the food was not knowingly or intentionally produced with genetic engineering and was segregated from food that may have been produced with genetic engineering.
Liability and Enforcement
Under H.B. 112, liability for failing to properly label food containing GMOs may result in civil penalties of $1,000.00 per day, per product. The Vermont Attorney General is vested with the authority to promulgate and enforce regulations specifying that violations of H.B. 112 constitute unfair or deceptive acts under Vermont’s existing consumer protection laws. Consumers would be entitled to a private right of action to enforce violations of any regulations promulgated.
Retailers would not liable for failure to label a manufacturer’s processed food that contains GMOs; however, a retailer may be liable for failing to label a GMO-based raw agricultural commodity.
On Wednesday, April 9, Representative Mike Pompeo (R-Kan.) introduced H.R. 4432, [ enhanced version available to lexis.com subscribers], a bill containing many provisions supported by the food and biotech industry, which would give sole authority to FDA to require mandatory labeling of GMO foods only if such food is found to be unsafe or materially different from foods produced without GMO ingredients. Importantly, H.R. 4432 would preempt any state laws that mandate the labeling of food or food products containing or derived from GMO ingredients.
Although it is uncertain what course federal lawmakers will ultimately take, it is likely that, if enacted, H.B. 112 will be challenged in court on a variety of grounds by the food and biotech industries. Keller and Heckman attorneys will continue to track this important issue.
 H.B. 112, available at http://www.leg.state.vt.us/database/status/summary.cfm?Bill=H.0112.
 H.B. 112, § 3048(b).
 See Vt. Stat. Ann. Tit. 9, § 2461(b) (2014), [ enhanced version available to lexis.com subscribers], and H.B. 112, § 3048(b).
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