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The grieving or greening in Vermont

Another round in GMO labelling


These days it seems nothing in the U.S. gets done without some good old Yankee litigation.

Soon after May 2014, when Vermont’s governor signed into law legislation that would make it mandatory in that state to label retail packaged foods containing food derived via genetic engineering (GMO), the gloves were off again in the U.S. In June 2014 industry groups filed a lawsuit, claiming among other things that the law violates their First Amendment constitutional rights to free speech, or conversely, speech that would be forced upon them, and that such labelling would be pre-empted by the federal Food, Drugs and Cosmetic Act (FD&C).

Vermont’s new law, known as Act 120 (Consumer Protection – Labeling Foods Produced with Genetic Engineering) is slated to come into effect on July 1, 2016. A temporary injunction on the implementation date was also sought, to permit the case to be resolved before the law came into effect. A federal court ruling in late April 2015 rejected the temporary injunction, clearing its path to the July 1, 2016 effective date. The recent ruling however, did not dismiss the case. That case still has to be heard, even if the law comes into effect in the meantime. Food companies in the U.S. and Canada which sell retail packaged foods in Vermont must now scramble to prepare label changes, or plan an action to deal with a likely implementation of the law.

On March 25, 2015 a Bill named Safe and Accurate Food Labeling Act of 2015, (SAFLA) was introduced in the U.S. Congress. If successful, that Bill would amend the federal FD&C to explicitly include provisions that would effectively pre-empt state governments from the introduction of mandatory GMO labelling, simply because a food is or includes food derived by this technology. It would also require the U.S. FDA to create regulation governing the use of the term “natural,” but not to the exception of food that includes GMOs. Vermont’s Act 120 would also prohibit food which contains GMOs from being claimed as “natural.”

In addition, the SAFLA would pre-empt states from creating legislation to define “natural” in ways that would differ from a federal definition yet to be drafted. Currently the FDA only provides very generalized guidance on the use of “natural.” This generalized definition and the FDA’s previous reluctance to create regulations concerning natural, has spawned a plethora of civil litigation in the U.S. over the term. The federal Bill would also amend the Agricultural Marketing Act to create a “national non-bioengineered food certification program” and “national standards for labeling non-bioengineered food.”

Aside from the fact that the federal Bill would provide uniformity in U.S. food labelling on this matter, it would also establish a pre-market biotechnology notification program. The safety review of new foods for humans derived from genetic engineering are currently assessed by the FDA, but via a voluntary mechanism.

In contrast, Canada has had a mandatory pre-market notification system for foods derived via genetic engineering, under the Food and Drug Regulations, since 1999. Such foods are governed as novel foods. The Canadian system also captures foods defined as “novel food” under a pre-market notification system, such as those with no safe history of use in foods and those manufactured by a process that causes it to undergo a major change (such as variations that affect the nutritional, microbial or chemical safety of food, or how it is metabolized in a body). Such pre-market notifications must demonstrate that the food is safe.

Canadian and U.S. food authorities have concluded that the genetically engineered foods they have reviewed and deemed safe are not materially different than similar foods not so derived. They further note that there is no compelling safety reason then to specifically label such foods. Despite this, current Canadian regulations would require such foods to be labelled in a manner that distinguishes them from other similar foods, if they were materially different. For example, if the genetically engineered food introduces a food allergen, that would have to be specifically labelled. The proposed Bill in the U.S. would also require such labelling, but only where needed.

If Vermont’s legislation is successful it may inspire the state of New York to do the same. Maine and Connecticut already have similar legislation, but are waiting for neighbouring states to enact similar labelling legislation before they implement theirs. Success in Vermont might be the domino that tips over others. It may very well also inspire similar movements in Canada, which in contrast to those in the U.S. have been rather quiet. Failure in Vermont would remove the wind in the sails of the GMO labelling movement. Canadians should be interested in what our neighbours are up to.


Gary Gnirss

Gary Gnirss

Gary is a partner and president of Legal Suites, Inc., specializing in regulatory software and services
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