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Notable Provisions of H.B. 112




by:
Melvin S. Drozen
Keller and Heckman LLP - Washington Office

Leslie T. Krasny
Eric S.C. Lindstrom
Keller and Heckman LLP - San Francisco Office

Richard F. Mann
Frederick A. Stearns
Keller and Heckman LLP - Washington Office

 
April 30, 2014

Previously published on April 25, 2014

Labeling Requirements

Section 3403 sets forth the GMO labeling requirements in Vermont. Foods that are produced entirely or partially with genetic engineering must be labeled as follows:

  • Packaged raw agricultural commodity (RAC): “produced with genetic engineering” on package.
  • RAC that is not packaged: “produced with genetic engineering” posted on label on retail store shelf or bin.
  • Processed food that contains a product or products of genetic engineering: “partially produced with genetic engineering,” “may be produced with genetic engineering,” or “produced with genetic engineering.”

Genetic engineering is defined as a process by which a food is produced from an organism or organisms in which the genetic material has been changed using rDNA technology or fusion cell techniques. One question raised by the legislation is whether it is drafted broadly enough to include processed foods that contain ingredients that were derived from GMOs even if the processed foods do not contain any detectable levels of GM material or protein. Are these foods truly partially produced with genetic engineering?

Prohibition on “Natural” Labeling

H.B. 112 would prohibit the manufacturer of foods produced with GMOs from labeling the food as “natural,” “naturally made,” “naturally grown,” “all natural” or similar terms that “would have a tendency to mislead a consumer.” The “natural” labeling prohibition would not apply, however, to any product subject to an exemption from the labeling mandate.

Exemptions

Like most other state GMO labeling bills, H.B. 112 provides exemptions from the labeling requirements to a number of products, including: food derived from animals fed GMO food, processed food that contains processing aids or enzymes produced with genetic engineering, alcoholic beverages, food containing less than 0.9% by weight of materials produced with genetic engineering, food certified by an independent organization as being GMO free, food intended for immediate human consumption or food served in restaurants, and medical food.

H.B. 112 would also exempt from the labeling requirements food produced without the knowing or intentional use of GMO ingredients. Food will only be deemed to be produced without the knowing or intentional use of GMO ingredients if a sworn statement is obtained from a supplier indicating the food was not knowingly or intentionally produced with genetic engineering and was segregated from food that may have been produced with genetic engineering.

Liability and Enforcement

Under H.B. 112, liability for failing to properly label food containing GMOs may result in civil penalties of $1,000.00 per day, per product. The Vermont Attorney General is vested with the authority to promulgate and enforce regulations specifying that violations of H.B. 112 constitute unfair or deceptive acts under Vermont’s existing consumer protection laws.[1] Consumers would be entitled to a private right of action to enforce violations of any regulations promulgated.[2]

Retailers would not liable for failure to label a manufacturer’s processed food that contains GMOs; however, a retailer may be liable for failing to label a GMO-based raw agricultural commodity.



[1] H.B. 112, § 3048(b).

[2] See Vt. Stat. Ann. Tit. 9, § 2461(b) (2014) and H.B. 112, § 3048(b).



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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