As of July 1, 2016, products offered for retail sale in Vermont that are produced entirely or partially with genetic engineering must be labeled as such or face stiff financial penalties. Vermont’s genetically-modified-organisms law, or “GMO” law, aims to promote public health and food safety, increase consumer consciousness of how their food is produced, and inform the public about the environmental impacts of the production of food from genetic engineering. The new law affects both retailers and manufacturers that sell retail products in Vermont, imposing independent labeling requirements on both groups depending on what the product is and how it is sold. A close examination of the law is critical for any food-service company—either in Vermont or elsewhere—that sells retail products in Vermont.
A. What Retail Products Must Be Labeled and by Whom?
Vermont’s GMO law encompasses four categories of retail products, each of which the law defines in detail:
- Unpackaged raw agricultural commodities,
- Unpackaged processed foods,
- Packaged raw agricultural commodities, and
- Packaged processed foods.
Retailers, a defined term, are responsible for labeling any “unpackaged” food that is produced with genetic engineering and offered for retail sale in Vermont: categories 1 and 2. For any unpackaged raw agricultural commodities, retailers are required to post a label on or near a sign that identifies the product with a “clear and conspicuous” disclosure reading, “Produced with Genetic Engineering.” For any unpackaged processed food, retailers must post a label containing a disclosure reading “Produced with Genetic Engineering,” “Partially Produced with Genetic Engineering,” or “May be Produced with Genetic Engineering,” as determined under the law, on the bin, shelf, or container in which the food is displayed.
Manufacturers, also a defined term, are responsible for the labeling of applicable packaged foods under categories 3 and 4. Disclosures on packaged, raw agricultural commodities must read “Produced with Genetic Engineering.” Disclosures on packaged, processed foods must read “Produced with Genetic Engineering,” “Partially Produced with Genetic Engineering,” or “May be Produced with Genetic Engineering,” as appropriate. In addition, manufacturers are not permitted on their GMO warning labels to make any statement about the food containing the word “natural” or words of similar import, with minor exceptions. Manufacturers may, however, make other disclosures about the food on its packaging, including for example that the FDA does not consider food produced with genetic engineering to be materially different from other foods. GMO labels need not indicate which ingredients were genetically engineered.
B. Exemptions and Exceptions to Vermont’s GMO Law
Neither manufacturers nor retailers need follow the law’s labeling requirements if a retail product otherwise requiring a label falls within one of the following eight categories, described at length in the law and its accompanying regulations:
- Animal products and foods bearing USDA approved labels;
- Foods certified as not produced with genetic engineering;
- Foods merely processed with aids or enzymes that themselves were produced with genetic engineering;
- Alcoholic beverages;
- Foods with minimal genetically-engineered content;
- Foods verified by a qualifying organization;
- Unpackaged, unprocessed foods sold for immediate consumption; and
- Medical food.
C. Enforcement and Penalties
Any person who violates the GMO law can be liable for a civil penalty of not more than $1,000 per day, per product. This penalty is not made or multiplied by the number of individual packages of the same product offered for retail sale. The penalties will accrue and be assessed, however, based on each uniquely named, designated, or marketed product. Violators of the law’s detailed record-keeping requirements will be liable for a civil penalty of not more than $1,000 total for the first violation; subsequent violations are subject to stricter penalties. The law is enforced by the Vermont Attorney General’s office.
D. What Does Vermont’s GMO Law Mean for My Food-Service Business?
Now that Vermont’s GMO law is in effect, both retailers and manufacturers conducting business in Vermont must examine their retail offerings that contain (or may contain) genetically-modified organisms and develop a clear, consistently-applied labeling system to address their labeling responsibilities. Retailers and their manufacturers should communicate with one another about how to achieve compliance without disrupting the flow of business. Both parties also should align their expectations about how particular items will be labeled, particularly because retailers appear to be incentivized to label an item if they are unsure about whether that item has been produced with genetic engineering.
E. A National GMO Labeling Law?
Vermont’s GMO law has tapped into consumers’ desire for transparency and detail regarding the genetic modification of their food. The federal government, which has attempted to address this need for nearly a decade, may soon follow suit. The House of Representatives voted on Thursday, July 15, to pass a federal requirement for labeling products made with genetic modification. The bill, which passed the Senate the week prior, will now head to President Obama who is expected to sign it into law. If passed, the federal law would supersede Vermont’s GMO law. As written, the bill allows companies various choices for labeling including text, symbols, or a digital link such as a QR code. The federal bill is not without controversy and likely would take years to implement into nationwide usage. Until this bill becomes law, Vermont’s GMO law will stand and require compliance on the part of retailers and manufacturers providing retail items into Vermont’s marketplace. If your business is affected by Vermont’s GMO law and you have questions about compliance, the author and other attorneys at Conn Kavanaugh are ready to assist you.