The Vermont House of Representatives has passed H.112, a bill requiring the labeling of all genetically engineered (GE) food sold in Vermont. However, there are plenty of hurdles ahead.
First, the bill must be approved in the Senate , which will not now likely get the opportunity to look at it until January 2014.
If it is approved by the Senate, it will then be effective two years after the date it is passed, or 18 months after at least two other states adopt similar bills, whichever comes first.
Michael Hansen, PhD, senior scientist at the Consumers Union, the advocacy arm of Consumer Reports, said the vote represented a “major victory” for consumers, while Just Label It campaign also applauded the move.
Scott Faber, Executive Director of Just Label It, added: "Vermont continues to be a leader in the fight for GE labeling and the consumer right-to-know. We urge more state leaders to recognize the strong support of this issue nationwide."
The legal challenge to GMO labeling
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, while federal preemption questions were also likely to be raised.
In fact, the best-known example of a successful First Amendment challenge to a state food labeling law was in Vermont, when the 2nd circuit court concluded that a 1994 statute mandating labeling of milk treated with artificial growth hormones (rBST) in Vermont was unconstitutional under the First Amendment, as it compelled food companies to choose speech instead of silence.
Currently, 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.
A First Amendment challenge to Prop 37 or similar state-led GMO labeling initiatives would therefore be tough to defend, Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, recently told FoodNavigator-USA, 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."
Bill contains controversial clauses over ‘natural’ foods
Unlike GMO labeling bills that were defeated in 2011 and 2012, 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.
GMA: Bill raises ‘serious constitutional concerns’
Karin Moore, vice president and general counsel of the Grocery Manufacturers Association (GMA), recently provided legal testimony against the bill, which she argued raised “serious constitutional concerns”, according to local press reports. Click here for more from VTDigger.org.