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08.04.2016 | Legal Advisory

Four weeks after Vermont’s controversial legislation regulating the labeling of foods containing genetically modified organisms (GMOs) took effect, President Obama has signed into law bill S. 764, which puts in place the framework for the development of a national standard for the labeling of GMO food products. This legislation contains not one, but two express preemption provisions in §§ 293(e) and 295(b) that effectively prohibit any state, including Vermont, from establishing its own GMO labeling requirements that differ in any way from the federal standard under this framework. While the legislation itself does not establish the labeling requirements—the Department of Agriculture (DOA) is given two years under bill S. 764 to establish a national GMO labeling standard and the processes for enforcing that standard—President Obama’s signing of this bill sets a deadline for the development of a uniform national standard, overseen by the DOA.

Although specific requirements have yet to be set, this legislation does establish certain guidelines for the regulatory scheme to be developed by the DOA, including the following:

• The regulations established by the DOA must contain a safe harbor for animal food products that would be considered bioengineered solely because the animal consumed feed containing bioengineered feed;
• The DOA must determine the threshold amount of bioengineered substance that may be present in a food product before the requirements apply;
• The regulations must also establish a process through which the DOA can be requested to make a determination as to whether a food is to be considered a bioengineered food;
• The regulations must allow the food manufacturer the discretion to select the form of disclosure, though manufacturers will not be permitted to make the disclosure using internet URLs not embedded in the disclosure;
• The DOA must provide alternative reasonable disclosure options for foods sold in smaller packages;
• The regulations must provide small food manufacturers an extra year to comply and additional disclosure options (including the display of a phone number on package where customers can get access to additional information); and 
• The regulations must allow for electronic disclosure methods such as QR codes that consumers can scan.

Pursuant to this legislation, the DOA must also study, over the course of the next year, whether certain issues like the availability of internet or the rural or urban nature of the community in which a retailer is located will affect consumers’ access to information. In the event that the DOA determines that these issues will affect consumers’ ability to access information, this law will require the DOA to develop alternative disclosure requirements.

While the specifics of the labeling requirements are yet to be seen, the signing of this legislation brings a great deal more certainty to the topic of GMO labeling. Manufacturers will have the benefit of a national uniform regulatory scheme, eliminating the risk that they would be faced with differing and often conflicting requirements on a state by state basis. For consumers, the legislation ensures that there will soon be a system in place through which consumers across the country, rather than select few states, will have access to more information about the foods they consume.

This advisory was prepared by the Food & Beverage practice group at Nutter McClennen & Fish LLP. If you have any questions about these recent announcements regarding the regulation of GMO labeling on food and beverage products, please contact your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.