May 16, 2014
Food industry companies and retailers who do business in Vermont have two years to get ready to comply with a new law requiring foods containing genetically modified organisms (GMOs) to be labeled as such. On May 8, 2014, Vermont Governor Peter Shumlin signed into law a bill requiring the labeling of genetically engineered foods. In doing so, Vermont became the first state to enact such a law, which takes effect on July 1, 2016. Vermont's law applies to foods that contain GMOs that total more than 0.9% of the product's weight. In order to comply with the law, these foods' labels must state that the product "may be partially produced with genetic engineering." The law also prohibits manufacturers from labeling any products with GMOs as "natural," "all natural," or similar designations.
Even companies who do not conduct any business in Vermont should be prepared to comply with similar labeling laws. Both Connecticut and Maine have already passed labeling requirements, but those bills included "trigger clauses," whereby the laws will only go into effect when neighboring states enact their own GMO label laws. The basis for delaying the effective dates of the laws is to avoid a situation where a single or small number of states are fighting legal challenges to the labeling requirements. Vermont is well-aware of the potential for a legal challenge to its law. Indeed, Vermont Attorney General Bill Sorrell indicated in a statement that the "constitutionality of the GMO labeling law will undoubtedly be challenged." He stated further that "I can make no predictions or promises about how the courts will ultimately rule but I can promise that my office will mount a vigorous and zealous defense of the law that has so much support from Vermont consumers." Likely challenges from opponents of the law include arguments that it violates commercial free speech rights under the First Amendment, interferes with interstate commerce, or is preempted by federal law.
Despite the threat of legal challenges, other states appear poised to follow Vermont's lead. According to the nonprofit Council for Agricultural Science and Technology, at least 25 other states are currently evaluating and considering GMO labeling laws. As recently as May 6, 2014, a New York state assembly panel approved a bill that would require foods to be labeled to inform consumers about ingredients made from genetically modified plants. So far, however, the U.S. Food and Drug Administration has declined to enact any legislation specific to GMO labeling.