Well Done


Vermont’s Office of Attorney General recently released its draft rule detailing how manufacturers and retailers could be required to label genetically modified organism–processed (GMO-processed) food sold in the state. The draft rule is expansive and will affect several sectors of the food industry, including producers, processors, distributors, and retailers. Significantly, Vermont’s GMO rule could serve as a model for future regulation by other states with GMO legislation and even the federal government.

This rule will place significant burdens on retailers and manufacturers to understand the composition of source ingredients. Vermont’s Act 120 defines “genetic engineering” as a process by which food is produced from organisms that are changed through the application of in vitro acid or hybridization techniques that do not occur by natural manipulation. Food products manufactured through “genetic engineering” and/or that contain GMO components must be labeled as such. The proposed rule is intended to clarify this mandate and provides that products produced with GMOs must be labeled by retailers and manufacturers as “Produced with Genetic Engineering.” In certain instances, retailers and manufacturers may label products as “Partially Produced with Genetic Engineering” (when the item is composed of less than 75% GMO material) or “May be Produced with Genetic Engineering” (when the seller does not know whether the food itself is genetically modified or contains items produced with GMOs). No label is required when 0.9% of the product’s total weight consists of items produced with GMOs.

Six aspects of the draft rule caught our eye as particularly noteworthy:

  1. Retailers, such as grocery stores, farmers markets, and convenience stores that sell food not for immediate consumption will in most instances need to label whether agricultural or processed foods were processed with GMOs. Significantly, retailers will be responsible for implementing these disclosures through in-store signage if manufacturers have not made the disclosures on the product itself.
  2. Manufactures of either agricultural commodities or processed foods made with GMOs must disclose through labeling whether the item is “Produced with Genetic Engineering,” “Partially Produced with Genetic Engineering,” or “May be Produced with Genetic Engineering.” This requires manufacturers to make labeling statements based on their knowledge of the sourcing and production of the ultimate product’s component parts.
  3. Restaurants and other stores primarily engaged in selling food for immediate consumption are exempt from the labeling requirements. In addition, food prepared for immediate consumption is exempt regardless of where it is sold.
  4. Manufacturers are prohibited from using “All Natural,” “Natural,” or any words of similar import on food products comprised in whole or in part of GMOs. This restriction reaches all advertising in retail stores, on signs identifying the product at the point of sale, and on the label. But, this prohibition does not apply to a food’s trade name, brand name, or information contained in the Nutrition Facts Label or Ingredient List.
  5. There are exemptions for certain types of food, including animal products that are not produced with GMOs, regardless of whether the animal consumed feed processed with GMOs and alcoholic beverages.
  6. The regulation provides that Vermont’s Office of Attorney General may enforce the regulations and seek a civil penalty of up to $1,000 per day, per product for violations. Notably, the per-product calculation is not based on the number of units available for sale in the state, but instead based on the number of uniquely named and designed products within a product line.

The draft regulation is currently being previewed in town hall meetings and will likely be released for public comment in early 2015. The regulation will then go into effect on July 1, 2016. The Grocery Manufacturers Association and others have challenged the constitutionality of Vermont’s Act 120 in the District of Vermont. Despite the ongoing court battle, Vermont’s Office of Attorney General has not shied away from taking a bold stance in the first draft implementing the GMO labeling rule.