WASHINGTON, May 13, 2015 – Vermont’s effort to identify foods containing genetically modified organisms (GMOs) has been billed as a “no-strings attached” labeling law. Simple. Straightforward.
But a closer look at the legislative language and the consumer protection rule that will guide implementation – if the law withstands legal challenges - provides some rather surprising twists and exemptions that will prevent Vermonters – and potentially consumers in the rest of the country who may ultimately be impacted – from really knowing what’s in many food products.
“Vermonters take our food and how it is produced seriously, and we believe we have a right to know what’s in the food we buy,” Gov. Peter Shumlin told the crowd gathered on the State House lawn for the signing event almost one year ago. “I am proud that we’re leading the way in the United States to require labeling of genetically engineered food. More than 60 countries have already restricted or labeled these foods, and now one state – Vermont -- will also ensure that we know what’s in the food we buy and serve our families.”
Indeed, there is a long list of processed foods and food components that will be impacted because they might contain ingredients derived from genetically modified corn, soybeans or other crops. But the list of exemptions is also quite long, starting with animal products. Critics of the law say that’s of little surprise, especially when you consider that over 65 percent of Vermont's agricultural income is generated by the sale of dairy products.
The law exempts “food consisting entirely of or derived entirely from an animal which has not itself been produced with genetic engineering, regardless of whether the animal has been fed or injected with any food or drug produced with genetic engineering.”
Little wonder then that, after the VT. Governor signed the law, Ben & Jerry’s scoop truck dished out free ice cream. Ben & Jerry’s CEO Jostein Solheim, who spoke at the bill-signing, said all his company’s products will carry a label indicating they source only non-GMO. And with this type of a label, Burlington-based Ben & Jerry’s can easily claim “non-GMO” without having to dish out for milk produced from cows eating more expensive organic feed.
But exemptions don’t stop with milk. The law also exempts all packaged, processed food containing meat or poultry in foods bearing USDA approved labels, in an effort to avoid conflicting with USDA inspected products, explains Todd Daloz, Assistant Attorney General with the Vermont Attorney General’s office.
For example, manufacturers would be required to label a can of vegetable soup if it contained GMOs as “Produced with Genetic Engineering,” but not a can of vegetable beef soup. Likewise, lasagna containing meat would be exempt from labeling, but not lasagna made only with vegetables and containing GMOs.
The law also exempts food for “immediate consumption.” So a frozen pizza could trigger the label, but not a pizza made for fresh delivery or other restaurant food. Exemptions also exist for processed foods if the aggregate weight of the GMO materials equals no more than 0.9 percent of the total weight of the food and foods verified by a “qualifying organization” authorized by the Attorney General’s office.
Do Vermonters want to know if GMOs are in their alcoholic beverages? Apparently not - almost all alcohol sold in Vermont would be exempt from labeling.
Opponents of the law point to this hodgepodge of exemptions as evidence of how difficult it will be for the food supply chain to administer and deliver products which are correctly labeled. And penalties could be steep. Any person who violates the law, which is scheduled to take effect July 1, 2016, will be subject to penalties of not more than $1,000 per day, per product.
“The supply chain issues that are inherent with trying to do labels for one state are simply enormous,” emphasizes Karin F.R. Moore, Senior Vice President and General Counsel for the Grocery Manufacturers Association. She’s also very concerned about “questions of liability” with the potential for the state to take legal action as well as the potential for consumer class actions if a mislabeled product is found on a shelf.
That’s one reason why grocery manufacturers, agribusinesses and other members of the Coalition for Safe Affordable Food are supporting federal voluntary labeling legislation introduced by Rep. Mike Pompeo, R-Kansas.
Pompeo recently told Agri-Pulse that the Vermont ruling underscored the potential threat of state and local labeling requirements.
“You will ultimately have a thousand different rules, not 50. You'll have every town decide they have their own set of rules, every city, LA, San Francisco. The cost of food for low-income Americans will go far higher than it needs to be," Pompeo said.
Critics of the Pompeo bill say it would prevent state labeling laws, like Vermont’s from being implemented. If that’s the case, “a veil of secrecy will cloak ingredients, leaving consumers with no way to know what’s in their food,” said Scott Faber, senior vice-president of government affairs for the Environmental Working Group (EWG), in a release. “Consumers in 64 countries, including Saudi Arabia and China, have the right to know if their food contains GMOs. Why shouldn’t Americans have the same right?”
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