One Step Closer to a National GMO Labeling Law

July 08, 2016

The Vermont GMO Labeling Law is currently in effect, but it may soon be preempted by federal legislation making its way through Congress.

On July 7, by a vote of 63-30,[1] the US Senate passed a measure (Senate Bill) concerning the labeling of bioengineered foods (known colloquially as GE or GMO foods). [2] The Senate Bill would establish a national disclosure standard for bioengineered foods that would preempt any state-level GMO labeling requirements and would give the secretary of agriculture two years to draft appropriate implementing regulations. Most immediately, if enacted and signed into law, the Senate Bill would directly affect Vermont Act 120,[3] Vermont’s mandatory GMO labeling law, which as of July 1, 2016, is in effect as discussed below. The Senate Bill is now before the US of House of Representatives, which must reconcile the Senate Bill’s language with the text of a voluntary GMO labeling bill that the House passed in July 2015.

Vermont Law

On July 1, 2016, Vermont Act 120 and its implementing regulation, the Vermont Consumer Protection Rule 121[4] (the Rule) went into effect (collectively, the Vermont GMO Labeling Law). The Vermont GMO Labeling Law requires special labeling of foods produced entirely or in part with genetic engineering identifying that fact.[5] Additionally, the Vermont GMO Labeling Law prohibits a manufacturer of a food produced entirely or in part from genetic engineering from labeling the product as “natural,” “naturally made,” “naturally grown,” “all natural,” or any words of similar import that “would have a tendency to mislead a consumer.”[6]

Recognizing that some packaged, processed food products have longer shelf-lives, the Vermont attorney general has stated that the Rule provides a six-month “safe harbor”[7] for foods distributed before July 1, 2016, and offered for retail sale through December 31, 2016.[8] In essence, a food manufacturer will not be liable for failure to comply with the Vermont GMO Labeling Law unless there is evidence that the food in question was distributed to the retailer on or after July 1, 2016. In addition, the Vermont attorney general also has announced that a consumer may not bring a private right of action to enforce the Vermont GMO Labeling Law before July 1, 2017.

Senate Bill

If signed into law, the Senate Bill will

  • allow food makers to select from among several options for labeling, including text on a package, a symbol, or a link to a website (e.g., QR code[9] or similar technology);
  • immediately prohibit states or other entities from mandating labels of food or seed that are genetically engineered;
  • Apply to some meat, poultry, and egg products regulated by the US Department of Agriculture that are fully exempted under the Vermont GMO Labeling Law;
  • allow small food manufacturers to use websites or telephone numbers to satisfy disclosure requirements;
  • exempt very small manufacturers and restaurants from the requirements; and
  • permit food that is certified under the National Organic Program to clearly display a “non-GMO” label in addition to the organic seal.

Next Steps

Given the current uncertainty that any legislation in the area will be enacted before Congress’s August recess, food companies that sell and ship food into Vermont need to familiarize themselves with the Vermont law as well as its exemptions.[10] Hopefully, the situation will be clarified further in the coming weeks.

We will continue to monitor the development of any federal legislation and its effect on state-level labeling initiatives.


If you have any questions or would like more information on the issues discussed in this LawFlash, please contact Morgan Lewis.

[1] Ellyn Ferguson, Senate Backs Federal GMO Labeling, Question Moves to House, CQ Roll Call (Jul. 7, 2016) .

[2] Press Release, US Senate Committee on Agriculture, Nutrition, & Forestry, Senate Agriculture Committee Leaders Strike Deal on Agriculture Biotechnology Compromise (Jun. 23, 2016).

[3] Act No. 120, An act relating to the labeling of food produced with genetic engineering, 2013–2014 Reg. Sess. (Vt. 2014).

[4] Consumer Protection Rule 121, Labeling Foods Produced with Genetic Engineering, (filed Apr. 17, 2015).

[5] See § 3043(a) of Vermont Act 120.

[6] See § 3043(c) of Vermont Act 120.

[7] See CP 121.04 of Rule.

[8] Office of Attorney General William H. Sorrell, GE Food Labeling Rule, (Feb. 10, 2016).

[9] QR Code is a form of matrix barcoding technology that allows the storage of information about the item that the code is attached to.

[10] See § 3044 of Vermont Act 120t (“Food products of animals that have not themselves been products with GE, regardless if the animal was fed or injected with any food, drug, or other substance produced with GE; a raw agricultural commodity or processed food derived from it that has been grown, raised, or produced without the knowing or intentional use of food or seed produced with genetic engineering; any processed food that would be required to be labeled solely because it includes one or more processing aids or enzymes produced with GE; alcoholic beverages; any processed food which that would be required to be labeled solely because it includes one or more materials that have been produced with GE, provided that the GE materials in the aggregate do not account for more than 0.9 percent of the total weight of the processed food; food that an independent organization has verified has not been knowingly or intentionally produced from or commingled with food or seed produced with genetic engineering; food that is not packaged for retail sale; and medical foods”).