Legislation would give U.S. Department of Agriculture (USDA) two years to establish a national mandatory bioengineered food disclosure standard
Late last week, the U.S. House of Representatives approved a measure to require the U.S. Department of Agriculture (USDA) to establish a national mandatory bioengineered food disclosure standard (GMO labeling standard); the U.S. Senate adopted the same legislation on July 6th. The bill, which President Obama is expected to sign into law, would:
- give USDA two years to develop the mandatory GMO labeling standard; and
- generally preempt non-identical state statutes, including portions of Vermont Act 120, which recently went into effect.
More specifically, the GMO labeling standard is to apply to "food," as defined in the Federal Food, Drug, and Cosmetic Act (FD&C Act or the Act), that is intended for human consumption. Given that the legislation does not specifically exclude dietary supplements, and because dietary supplements are generally deemed to be foods under the Act (with some exceptions), they are also likely covered by the bill. Beyond its applicability to foods subject to the U.S. Food and Drug Administration's (FDA) labeling requirements, the measure would also apply, under certain circumstances, to foods that are subject to USDA's meat, poultry, and egg labeling requirements.
Opponents of the legislation are attacking its definition of "bioengineering," indicating that it could serve as a loophole. While it is not yet clear how USDA will interpret the term, it is possible that only finished foods that contain genetically modified material would be covered by the GMO labeling standard, whereas foods that contain ingredients derived from genetically modified crops but that no longer contain genetically modified material after processing would not.
If a food or dietary supplement is covered by the GMO labeling standard, a manufacturer would have to disclose the presence of genetically modified material in such product:
- via a textual statement;
- by including a symbol on food packaging; or
- by use of an electronic digital link (e.g., a Quick Response (QR) Code).
Small manufacturers would also be able to use a phone number or website to provide consumers with information on genetically modified material. The labeling requirements would not apply to very small food manufacturers.
The implications of the legislation, if signed into law, are important. For companies facing state and local laws governing labeling of genetically engineered food, the bill could immediately preempt such requirements (including portions of Vermont's GMO labeling statute, which is currently in effect).
If you have questions regarding the issues raised in this alert, please contact one of the authors.