- Will Feds Step Onto the GMO Playing Field?
- May 14, 2014
- Law Firm: Mintz Levin Cohn Ferris Glovsky Popeo P.C. - Boston Office
In January and April, this space took a look at the growing patchwork of state proposals for regulating the labeling of foods with genetically modified ingredients (GMOs). As posited in April, the recent surge in such bills raises a serious question as to whether any individual state—especially one, like Vermont, that accounts for less than 0.01% of the total US population—”should be in a position to regulate labels” of foods sold in interstate commerce. Against this backdrop of potentially thorny constitutional issues, the US House of Representatives is considering a bill that answers: “They shouldn’t.”
On April 10, 2014, representatives from both parties joined to introduce the Safe and Accurate Food Labeling Act (H.R. 4432), a bill that would preempt state legislation by giving the FDA exclusive authority to regulate GMO labeling. The proposed bill would:
- prevent the states from passing mandatory labeling requirements or other restrictions on the sale and marketing of GMO foods,
- authorize the FDA to mandate labeling for GMO foods to protect health and safety or to prevent misleading advertising,
- require FDA review of all new uses and applications of GMOs in foods before they are brought to market, and
- prevent manufacturers of non-GMO products from advertising that their products are “safer” than GMO products.
Presumably in response to the FDA’s decision in January not to issue a definition of “natural,” the bill also directs the agency to draft regulations defining the term for use on food labels.
This bill arrives at a time when more and more states are weighing in on the issue of GMO labeling. Just yesterday, the governor of Vermont signed into law a bill that would require labeling for certain foods made with GMOs. Maine and Connecticut, meanwhile, are still awaiting other states to join in before their own labeling laws go into effect. And while similar ballot initiatives have already fallen through in California and Washington, more than 20 other states are considering proposed legislation on GMOs. If ultimately passed, the Safe and Accurate Food Labeling Act would cement federal authority here and foreclose efforts by individual states to create their own rules, whether or not in concert with other states.
Of course, this bill is far from the final word on the issue, as it must pass through an infamously gridlocked Congress before going into effect. And state statutes like the Vermont law may run into Commerce Clause challenges in the courts even before they come into conflict with this federal legislation. But for now, the proposal of this bill sets the stage for further debate about the propriety of state regulation of labeling versus the need for uniformity and harmonization across state lines.