Vermont Attorney General's Office Releases Draft Regulations to Implement Genetically Engineered Food Labeling Law
On October 13, 2014, Vermont’s Office of the Attorney General published draft regulations intended to implement the already enacted Vermont Genetically Engineered (GE) food labeling law.
Vermont’s GE Labeling Law
Vermont’s Act 120, the measure mandating the labeling of genetically engineered foods, was signed into law on May 8, 2014. Act 120 requires that foods produced entirely or partially with genetic engineering must be labeled ““produced with genetic engineering,” “partially produced with genetic engineering,” or “may be produced with genetic engineering.” Liability for violations of the Act is directed towards manufacturers of food, not retailers. Compliance with the labeling requirement is not mandatory until July 1, 2016.
Notable Provisions in the Draft Regulations
The draft regulations set forth new and expanded definitions for a number of key terms in Act 120, establish the processes one must follow to obtain a sworn statement certifying a food has not been produced with genetic engineering, and explain how some of the exemptions from the labeling mandate will be applied. Notably, the regulations expand the definition for “manufacturer” to include not only entities that produce a food under their own brand name for sale in Vermont, but also entities that license their brand to another party or have their branded food produced by a another party. The regulations also clarify that liability for food manufacturers for food offered for sale that does not bear a genetic engineering disclosure because the food has been verified by a third party as not knowingly produced using genetic engineering can nevertheless arise if the food manufacturer has actual knowledge the food was produced with genetic engineering or the manufacturer acted in reckless disregard of the truth.
The proposal provides that one may only label a product as “partially produced with genetic engineering” if the food contains less than 75% (by weight) food produced with genetic engineering. In addition, one may only label the product “may be produced with genetic engineering” if the food’s manufacturer does not know whether the food is produced with genetic engineering. Labeling disclosures must be conspicuous and clear, in a font size no smaller than the size of the words “Serving Size” on the nutrition facts panel, and in a color that contrasts with the background of the package. A labeling disclosure that complies with the font size and color contrast requirements and that appears on the same panel as the nutrition facts label or ingredient list will be presumed to be “clear and conspicuous.”
Outlook
Unfortunately, the regulations may still leave some food manufacturers with questions about how to comply with the labeling mandate. Importantly, compliance with the regulations and Act 120 may be further delayed or eliminated as a result of a lawsuit filed in federal district court in Vermont by a number of trade associations representing the food industry seeking preliminary injunctive relief and to have the law overturned on the grounds that it is unconstitutional. The Attorney General’s office is holding public meetings to discuss the draft regulations. Keller and Heckman will continue to track this important issue.