A GMO labeling bill has passed its first regulatory hurdle in Vermont after the House Agriculture Committee passed it by an 8-3 vote last Friday.
One of a series of state-level GMO labeling bills introduced in recent months, H.112 will now go to the House Judiciary Committee for review, then to the floor for a vote.
The bill has garnered strong support with 50 members of the House and 11 senators signing on as cosponsors and if passed, would be effective 18 months after at least two other states adopt similar bills, or 24 months after its passage in Vermont — whichever comes first.
Bill could be subject to legal challenge on First Amendment grounds
However, Assistant Attorney General Bridget Asay recently warned lawmakers that biotech companies would probably sue the state over the legislation on First Amendment grounds should it pass.
Indeed, the best-known example of a successful First Amendment challenge to a state-led food labeling initiative was in Vermont, when the 2nd circuit court concluded that a 1994 statute mandating labeling of milk treated with artificial growth hormones (rBST) was unconstitutional under the First Amendment, as it compelled food companies to choose speech instead of silence.
And a First Amendment challenge to a state-led GMO labeling initiative would be tough to defend, Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, told FoodNavigator-USA last year, as the defense (ie. the state) would have to prove that failure to label GMOs would harm consumers.
"To justify GMO labels” said Cross, “you have to consider if any health and safety risks from GMOs are known, probable, or possible, and proving they are known or probable as opposed to just possible, could be hard." Click here for more information.
As it stands, federal law does not require the labeling of genetically engineered foods as the FDA has consistently argued that they do not differ from other foods "in any meaningful or material way" or present any different or greater safety concerns than foods developed by traditional plant breeding methods.
Vermonters are being led to believe there's something different in these products than others on the shelves
Unlike GMO labeling bills introduced in Vermont in 2011 and 2012 (which were defeated), H112 does not require meat from animals fed genetically engineered feed to be labeled.
However, it does includes some of the controversial clauses enshrined in Californian GMO labeling initiative Prop 37 - which was narrowly defeated last November - including the stipulation that foods containing genetically engineered ingredients cannot be marketed as ‘natural’.
While the bill has some high profile industry supporters including Ben & Jerry’s co-founders Jerry Greenfield and Ben Cohen, it has, however, been strongly criticized by other industry sources, notably the United Dairy Farmers of Vermont, which argues that labeling foods containing GE ingredients erroneously implies that there is something wrong with them.
Spokeswoman Maggie Laggis told reporters that labeling would mislead consumers: "Vermonters are being led to believe there's something different in these products than others on the shelves and there's no difference, no nutritional difference, no health and safety difference”.
However, Dave Rogers, policy adviser for the Northeast Organic Farming Association of Vermont, said the issue was not about safety, but consumer choice.
“We’re not saying this stuff is going to kill you,” Rogers told journalists . “In the face of such uncertainty, we have a right to know what we’re buying and make our own choices.”
Is a federal GMO labeling law inevitable?
So what happens next, and is a federal GMO labeling law probably inevitable given the flurry of state-level initiatives now underway?
While the Grocery Manufacturers Association has consistently opposed GMO labeling initiatives in individual states, several of its members are reported to have attended a meeting in Washington earlier this year to discuss federal labeling options amid concerns that complying with a patchwork of different GMO labeling laws across multiple states could prove to be a nightmare for manufacturers.
Trade associations representing the natural products industry have been more ambivalent about GMO labeling, with the Natural Products Association (NPA) and the Council for Responsible Nutrition (CRN) both opposing Prop 37 , but remaining agnostic over Washington State’s GMO labeling proposal I-522 , which has just secured enough signatures to go to the state legislature .