Senate tries to pre-empt Vermont on GMO label law

With Vermont’s mandatory GMO labeling law just days away from taking effect, the U.S. Senate has taken bold last-minute action to pre-empt it.

Or not.

It’s true that the Senate Agriculture Committee has approved a mandatory GMO labeling bill. It’s true that it would pre-empt Vermont’s GMO labeling law, which was enacted in 2014, officially goes into effect July 1, and requires products containing genetically engineered ingredients to be labeled as such. More important, however, it’s true that a Senate bill would spare the country from the administrative nightmare of multiple states passing incompatible labeling laws. But that’s only if it passes, which it hasn’t.

Until that happens (plus an additional year before the law takes effect), we probably are looking at Vermont-style GMO labeling requirements. It’s too late for big manufacturers to turn back on their current plans for complying in Vermont by either by relabeling, reformulation–or in the case of Coca-Cola, for instance, pulling product from shelves.

In a large single market like the United States, food labeling is best handled at the national level. So it would be good to have a law pass, even an imperfect one. But how imperfect is this one?

That, of course, depends on how you feel about genetic engineering. If you’re dead-set against it, you’re not likely to be happy. The competing interests here, roughly speaking, are giving consumers a choice versus not denigrating biotechnology. The bill itself seems a lot more focused on the latter than the former.

You never know exactly what a bill like this means until it’s turned into rules and guidance, but here’s how it looks right now:

What does it cover? Any food regulated by the Food and Drug Administration, including foods regulated by laws covering meat, poultry, and eggs (which are managed by the USDA), if the predominant ingredient is regulated by the FDA. What this seems to mean is that if the main ingredient is meat, the product is exempt from GMO labeling. Beef stew? Apparently exempt. Pepperoni pizza? Regulated, unless the crust is made from pepperoni. Then, it’d be exempt.

Does this make sense? Not to me, especially since the bill goes on to state that animal-based foods can’t be declared bioengineered just because they were fed GMO feed. That strips away a huge administrative headache (or conceals a lot of wrongdoing, depending on your perspective), but it also means that consumers are extremely unlikely to understand what labels mean. Again, we won’t know for sure until the law is turned into regulation (if that ever even happens), but it sure sounds like you can load your frozen meat entrée with any kind of GMO you want and not have to label it as long as you include enough meat.

Food from small manufacturers gets a one-year extension on enforcement. Restaurant food and products from very small manufacturers are exempt.

What counts as a GMO? The bill defines it as food “(A) that contains genetic material that has been modified through in-vitro recombinant 12 deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.”

That seems to mean that transgenic organisms—organisms that have been altered by insertion of genetic material from some other species—have to be labeled. If, on the other hand, scientists create a new variety by inserting, say, a gene from one kind of corn into another kind of corn, it might not have to be labeled. Advanced forms of genetic engineering such as gene editing or gene silencing aren’t mentioned. So the Simplot potato line, in which the gene that produces browning and bruising has been forced not to function, probably doesn’t need to be labeled as GMO. (This mirrors FDA’s decisions about the potatoes.)

Again, does this make any sense? Well, on the one hand, transgenic organisms are probably the ones consumers are most afraid of. (I’m guessing. I’ve never seen a poll that gets to that level of detail.) On the other, it means the law is completely arbitrary and responds just to what people are upset about rather than dealing with the complexities of an emerging set of practices. Which may, of course, be the point.

OK, test yourself. The AquAdvantage salmon contains genes from an unrelated sea creature that help it grow quicker. If it’s ever sold in the U.S., will it have to be labeled GMO under the Senate bill?

Tough one. It’s transgenic, which means yes, it needs the label. But it’s fish, and fish aren’t regulated by FDA, which means that it doesn’t. But FDA says that the genetic material inserted into the fish counts as a veterinary medicine, which means that FDA does have authority, which means that the food does need to be labeled. But the authority the FDA does have comes under its mandate to regulate drugs rather than its mandate to regulate foods. So really, who knows?

Laws break down in the real world, but they shouldn’t really break this easily, should they?

How are GMO foods labeled? This is the part that has people going crazy. The law says that manufacturers can use a symbol, words, or a link, presumably a scannable barcode. Very small manufacturers can include a phone number. The bill specifies that if a link is used, it can’t be labeled something like “Click here to read about our GMO ingredients.” It has to say “Click here for more information.”

In general, it sounds like there will end up being two kinds of products—those which say nothing, either because they don’t contain GMO ingredients or because they do but their labels are not required to disclose them, and those which offer more information, either because they contain GMO ingredients and their labels have to disclose that, or because their manufacturers want to use the internet to provide additional information about their products.

Realistically, if this bill passes, producers should drop their plans to use a link to offer additional information about the wonderful farmers who contribute to their all-organic, all-local product. It’s going to send the wrong message.

Having read the Senate GMO bill, I’m feeling a bit better about congressional dysfunction. As much as it would be a good thing to have a national law on GMO labeling, this is not nearly as careful, thoughtful, or likely to lead to equitable results as Vermont’s law. Guys: it’s like your moms told you back when you were very young senators. If you can’t pass something good, don’t pass anything at all.