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GMO Labeling Legislation Update: Industry Friendly Bill Introduced in Congress as State Legislatures Consider Bills Mandating GMO Labeling




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
Evangelia C. Pelonis
Keller and Heckman LLP - Washington Office

 
April 14, 2014

Previously published on April 11, 2014

Legislative activity surrounding the labeling of food produced from or containing Genetically Modified Organisms (GMOs) continues to escalate as lawmakers on Capitol Hill and in state legislatures consider a variety of proposals.

State Legislative Activity

Federal law does not currently require GMO labeling because FDA has determined that GMO ingredients pose no special safety risks to human beings, that the existing regulatory framework provides sufficient authority to ensure safety, and that food derived from GMO ingredients does not require special labeling unless it differs significantly from its conventional counterpart.[1] However, two states, Connecticut and Maine, have already passed measures with delayed implementation schemes mandating GMO labeling.[2] Vermont’s Senate appears poised to vote on a GMO labeling bill, S.B. 89, which contains a variety of exemptions and no delayed implementation scheme. The Vermont Senate Judiciary Committee favorably reported the bill out of committee on April 4, 2014. The Vermont House of Representatives already passed a GMO labeling measure in 2013.

Federal Legislative Activity

On Wednesday, April 9, Representative Mike Pompeo (R-Kan.) introduced H.R. 4432, a bill that contains many provisions supported by the food and biotech industry that would give sole authority to the Food and Drug Administration (FDA) to require mandatory labeling on GMO foods, and only if such food is found to be unsafe or materially different from foods produced without GMO ingredients.[3]

Rep. Pompeo’s bill would require the manufacturer of a GMO to submit a premarket notification to FDA at least 210 days before introducing the product into commerce stating the manufacturer’s basis for concluding that the GMO is as safe for human or animal consumption as a comparable food not produced from or containing GMO’s. FDA would then be required, within the 210 day period, to evaluate the submission and either approve or deny it. As noted above, only GMO’s that FDA has determined are materially different than a comparable food not produced from GMO’s and that pose a health or safety risk would be subject to a labeling requirement.

Importantly, H.R. 4432 would preempt any state laws that mandate the labeling of food or food products containing or derived from GMO ingredients. The proposed legislation would also prohibit a food label from indicating that a GMO free food is safer than a comparable non-GMO free food. Finally, H.R. 4432 requires FDA to promulgate regulations defining the appropriate use of the term “natural” on labels within 24 months from the bill’s date of enactment.

A less industry friendly GMO labeling bill, S. 809, was introduced by Senator Barbara Boxer (D-CA) on April 24, 2013. S. 809 would require any food that has been genetically engineered or contains one or more genetically engineered ingredients to be labeled as such.

Outlook

As the debate continues between proponents and opponents of GMO labeling, it is uncertain what course lawmakers in Vermont, Washington, D.C., and elsewhere will ultimately take. However, given the high level of attention being paid to this policy issue, it is unlikely to dissipate until a legislative body passes a measure without a delayed implementation scheme. Ultimately, a law mandating GMO labeling may be challenged in court on a variety of grounds.


[1] See Food and Drug Administration, Guidance to Industry for Foods Derived from New Plant Varieties, 57 Fed. Reg. 22984 (May 29, 1992).

[2] Both the Connecticut and Maine laws do not come into force until a number of other states have passed similar laws.

[3] Safe and Accurate Food Labeling Act of 2014, H.R. 4432, 113th Cong. (2014).

[4] Genetically Engineered Food Right-to-Know Act, S. 809, 113th Cong. (2013).



 

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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