With Congress’s freshly enacted GMO labeling bill, the devil is in the implementing details.
On July 29, US President Barack Obama signed legislation that establishes a national disclosure requirement for identifying bioengineered foods and food ingredients, known colloquially as “GMO” (genetically modified organism) or “GE” (genetically engineered) foods and that gives food companies alternatives for how to disclose the information. Critically, the law preempts any state-level genetically modified labeling requirements—including Vermont’s Law 120 that took effect on July 1—and requires the US Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) to issue implementing regulations.
The disclosure requirement will apply to foods subject to labeling requirements under the Federal Food, Drug, and Cosmetic Act (FD&C Act). The requirement will also apply to foods subject to labeling requirements under the Federal Meat Inspection Act, the Poultry Products Inspection Act, and the Egg Products Inspection Act if 1) the most predominant ingredient of the food would be independently subject to the labeling requirements under the FD&C Act (e.g., this would not apply to a pack of raw chicken breasts or steaks) or 2) the most predominant ingredient of the food is broth, stock, water, or a similar solution, and the second most predominant ingredient of the food would independently be subject to the labeling requirements under the FD&C Act (e.g., canned chicken soup).
The law gives AMS two years to draft appropriate implementing regulations. Among other things, the regulations
As a threshold matter, debate will continue over the precise scope of the definition of “bioengineering.” The law defines “bioengineering” as a food “that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and . . . for which the modification could not otherwise be obtained through conventional breeding or found in nature.” Concerns surfaced as the legislation was being finalized that the provision requiring the disclosure only when the food “contains genetic material” would inappropriately exempt foods that had bioengineered ingredients removed as part of their processing.
Other potential issues for the implementing regulations may include
First, companies can breathe a sigh of relief that independent state action has been precluded and that a uniform federal standard will ultimately emerge. Second, they should monitor, and seriously consider participating in, the rulemaking process. Third, they can evaluate whether, during the pendency of this process, they want to explore options for voluntary disclosure.
This pending GMO disclosure requirement does not exist in a vacuum. New US Food and Drug Administration requirements for adjustments in the Nutrition Facts Panel will also dictate an overhaul of most labeling inventories within a similar time frame. A new food label is emerging, and the surrounding issues of substance, timing, and logistics pose a substantial challenge to the entire food industry.
We will continue to monitor the GMO labeling law’s implementation.
If you have any questions or would like more information on the issues discussed in this Law Flash, please contact Morgan Lewis.
 S. 764, 114th Cong. (2nd Sess. 2016) https://www.congress.gov/114/bills/s764/BILLS-114s764enr.pdf.
 Act No. 120, An Act Relating to the Labeling of Food Produced With Genetic Engineering, 2013–2014 Reg. Sess. (Vt. 2014).
 S. 764, 114th Cong. § 291(1) (2nd Sess. 2016).