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Vermont Goes GMO Alone

In January, this space discussed the Maine and Connecticut laws that would require labeling for foods made with genetically engineered ingredients (GMOs). Each of the bills had a trigger qualification: 4 other states, or states with a combined population of 20 million, had to adopt similar measures. In the spirit of the bandits in The Treasure of the Sierra Madre, Vermont's senate passed a GMO labeling bill that goes into effect without any "stinkin' other states."

Certain foods retailed after July 1, 2015 that contain GMOs will require labels. The labeling requirement is triggered if the GMOs present in the food are more than 0.9% of the total weight of the food. The required labeling must conspicuously state on either the front or back label that the food "may be partially produced with genetic engineering."

The label would also include a disclaimer that the Food and Drug Administration does not consider foods produced from genetic engineering to be materially different from other foods.

Exempt foods include:

  • Meat
  • Milk (at least until a January 15, 2015 report is issued)
  • Raw agricultural commodities not knowingly grown with genetically modified seed
  • Certified organic foods
  • Foods served in restaurants
  • Medical foods

Retailers will not be liable unless they produce or manufacture a GMO food. Penalties include fines of up to $1000 per day per product.

Whether one agrees or disagrees with the virtues of GMO labeling, a question arises as to whether a state that ranks 49th of 50 and accounts for 0.002% of the total US population should be in a position to regulate labels. The practical effect of Vermont--or, for that matter, Maine, Connecticut, Vermont, and some fourth state--demanding GMO labeling laws would be to require GMO labels for all states. The costs associated with separate distribution channels and labeling would demand identical labels across all states, or perhaps those states' citizens would not be offered certain foods.

The argument that the states are the "laboratories of experimentation" may be appealing, but the Commerce Clause of the Constitution may get a workout before this issue is resolved.

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Daniel J. Herling

Member / Co-chair, Product Liability Practice

Daniel J. Herling is a highly regarded product liability defense attorney at Mintz. He handles litigation and class actions involving consumer products, leveraging his deep knowledge of California's consumer protection regulations and laws.