by Jonathan Rose Whether you are a grocer, a prepared- or processed-food manufacturer, or a supplier, you should already be aware that Vermont’s first-in-the-nation GMO food labeling law, commonly known as “Act 120,” is slated to take effect on July 1, 2016. By that date, food manufacturers and retailers will have to begin labeling most foods containing ingredients produced with genetic engineering. The new law is likely to raise a host of novel and potentially complex questions for businesses responsible for complying. For now, food producers and sellers should be thinking about how the law’s basic requirements might apply to them.
Act 120 applies broadly to any business that sells or manufacturers food offered for retail sale in Vermont, and requires labeling of any food produced in whole or in part with genetic engineering. There are, however, a number of specific exemptions for particular types of foods, such as: foods derived entirely from animals, foods that would be considered GMO solely because of processing aids or enzymes, certain prepared foods, alcoholic beverages, and “medical foods.” Foods that contain only small amounts (no more than 0.9% by weight) of genetically engineered materials also need not be labeled.
For foods that do need to be labeled, actual labeling responsibilities and requirements depend on whether a food is packaged, unpackaged, processed or a “raw agricultural commodity.” Food manufacturers are generally responsible for labeling packaged foods, whereas labeling of unpackaged foods falls on food retailers. The location and appearance of the label depends on whether the food is processed and/or packaged. Covered foods must be labeled “Produced with Genetic Engineering,” if they contain at least 75% GMO ingredients. Otherwise, the label can read “Partially Produced with Genetic Engineering.” Where a manufacturer or retailer cannot reasonably determine whether the food contains GMO, the notation “May be Produced with Genetic Engineering” may be used. Importantly, the law also prohibits foods containing genetically engineered ingredients from being labeled as “natural,” or any similar term.
So far, the most common questions our firm has received from businesses preparing for Act 120 have related not to the labeling requirements themselves, but to requirements for substantiating and documenting that foods need not be labeled. Fortunately, and perhaps unsurprisingly, the law does not require every food manufacturer or retailer to scientifically demonstrate the GE content of its products. Rather, the law allows sellers to rely on a “sworn statement” from a supplier to the effect that the supplied foods were not “knowingly or intentionally” produced with genetic engineering and were segregated from foods that may have been. Suppliers, in turn, may rely on sworn statements from other suppliers further upstream in the manufacturing process. The Attorney General has circulated a form “Sworn Statement” to be used for this purpose.
As for recordkeeping, the Attorney General’s regulations generally require that sellers maintain records “sufficient to demonstrate their compliance” with the law for three years (manufacturers) and one year (retailers) from the date a food is sold. This includes the sworn statements discussed above, documentation relating to the application of any relevant exemptions, and documentation of the labeling applied to foods that do contain GMO ingredients.
Finally, it is worth mentioning that although Act 120’s requirements go into effect on July 1, 2016, the law contains a provision effectively delaying enforcement for most processed foods for six months, giving retailers until January 1, 2017 to clear out old inventories. And recently, in response to concerns raised by Vermont retailers, the legislature effectively delayed implementation of the law’s consumer lawsuit provision until July 1, 2017.
Jonathan Rose is an attorney at the Burlington law firm Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, where he advises clients on Green Marketing and Food Labeling issues.