Food Safety
search
cart
facebook twitter linkedin
  • Sign In
  • Create Account
  • Sign Out
  • My Account
Food Safety
  • NEWS
    • Latest News
    • White Papers
  • PRODUCTS
  • TOPICS
    • Contamination Control
    • Food Types
    • Management
    • Process Control
    • Regulatory
    • Sanitation
    • Supply Chain
    • Testing and Analysis
  • PODCAST
  • EXCLUSIVES
    • Food Safety Five Newsreel
    • eBooks
    • FSM Distinguished Service Award
    • Interactive Product Spotlights
    • Videos
  • BUYER'S GUIDE
  • MORE
    • ENEWSLETTER >
      • Archive Issues
      • Subscribe to eNews
    • Store
    • Sponsor Insights
  • WEBINARS
  • FOOD SAFETY SUMMIT
  • EMAG
    • eMagazine
    • Archive Issues
    • Editorial Advisory Board
    • Contact
    • Advertise
  • SIGN UP!
RegulatoryFDAGuidelines

Vermont’s New Genetic Engineering Labeling Law: Hold the Celebration

May 6, 2014

Advocates of genetic engineering disclosure are enthusiastically but perhaps prematurely celebrating Vermont’s anticipated May 8 enactment of the nation’s first operative labeling disclosure requirement for foods that are themselves, or by ingredient, the product of a genome modified by human intervention. Vermont’s law also would bar the use of the word “natural” or comparable “natural” descriptors on genetically engineered products. The Vermont law is scheduled to become effective on July 1, 2016, but for important political and legal reasons, this is unlikely to happen.

On the political front, the Vermont law should energize the push for preemptive federal bioengineered organism legislation. Congress is considering H.R. 4432, a bipartisan bioengineering bill launched with broad food industry support by Rep. Pompeo (R-Kansas) on April 9, 2014. Rep. Pompeo’s bill would dispense with confusing disclosure requirements and focus instead on threshold U.S. Food and Drug Administration (FDA) review of the safety of bioengineered organisms; require the disclosure of differences, if any, between bioengineered foods and comparable, unmodified foods that might affect safety or nutritional quality; limit claims that foods are not bio-engineered to closely controlled ingredient chains; and expressly bar FDA or states from requiring the type of genetically engineered labeling disclosure mandated by Vermont. H.R. 4432 also would require FDA to define the term “natural” and bind the states to that definition. While the success of any legislative initiative, particularly one that is likely to be opposed by consumer groups and economically motivated organic farming interests, is always hard to predict, the specter that the food industry will otherwise be subjected to a costly hodge podge of state legislative requirements threatening the orderly national marketing of food products will certainly throw fuel on the legislative fire.

On the legal side, there are powerful arguments why the Vermont law infringes upon food manufacturers’ freedom of speech rights, and it is virtually certain that, absent Congressional action, manufacturers will seek to protect their interests in court. The Supreme Court’s growing interest in safeguarding the constitutional rights of commercial speakers does not bode well for Vermont, and legal challenges to the Vermont law may be hard to defeat. First, the Supreme Court has reinforced the principle, particularly in its recent Sorrell v. IMS Health decision, that freedom of speech includes the right not to disseminate government-mandated messages unless the government can demonstrate that the required disclosure is carefully tailored to advance a substantial state interest that cannot be advanced less intrusively. Second, while earlier decisions on commercial speech suggested that sellers could be required to communicate virtually any information that consumers might consider useful in making purchasing decisions, more recent cases have held that this lenient standard applies only to factual disclosures that are necessary to prevent sellers from deceiving or misleading consumers.

The Vermont law is likely to fail both of these tests. Because the Vermont law itself admits that there is no scientific evidence that genetically engineered products are harmful or lack nutritional value, the only interest advanced by the Vermont law is a form of speculative risk avoidance that the state could effect by undertaking its own public information campaign at its own expense, or that interested consumers could independently satisfy by, for example, seeking out products that are labeled “organic.” Moreover, even if Vermont’s “genetically engineered” disclosure requirement were considered strictly factual in nature—a conclusion that is doubtful at best—it is not directed at correcting an otherwise deceptive or misleading statement, because there is no evidence that genetically engineered products are harming consumers in any way. Similarly, Vermont’s prohibition on the use of the term “natural” to describe genetically engineered products does not regulate misleading statements, but advances a highly subjective, government-endorsed opinion that genomic modifications caused by human intervention in the genome, as opposed to similar or identical modifications that arise from random mutation or selective cross-breeding, are not “natural.” As FDA has said, the term “natural” has no settled meaning, and any attempt to devise a comprehensive definition would be a difficult, resource-intensive task whose outcome inevitably would be value-dependent rather than scientifically verifiable. Until a settled, scientifically valid definition of “natural” is available, sellers should not be precluded from expressing their opinion that foods derived from living organisms are, in fact, “natural” in important aspects.

Third, in its Sorrell decision, the Supreme Court held that speech restrictions that target only a specific set of speakers or a specific subject impose a higher burden of constitutional justification on the government. Vermont’s law is unlikely to clear this hurdle either, because the law contains sweeping exemptions from its disclosure requirements for restaurants, wine and liquor bottlers, and vendors of meat derived from animals fed with genetically engineered products from its disclosure requirements. To the extent that the state purports to have any scientific basis for its mandates, these politically expedient carve-outs are both arbitrary and incoherent, and further weaken the state’s First Amendment defenses.

The Vermont law and similar genetic engineering disclosure efforts across the country perpetuate a growing trend in which lawmakers have attempted to foist onerous mandatory disclosures on private manufacturers in an effort to disseminate government-preferred messages that are divorced from traditional regulatory concerns about market fraud and deception, and elevate fear of the unknown above rational scientific evaluation. The regulation embraced by the Vermont law is pushed by elite interests and organic farming enterprises, because the former can afford the extra cost of buying organic and the latter can only benefit from state endorsement of the unproven superiority of their products. Moreover, the imposition of labeling requirements in the absence of any demonstrated threat to human health or safety promises to line the pockets of the plaintiff’s bar by effectively defining material injury out of the liability equation. Fortunately, as far as the Vermont law is concerned, political and legal reality are poised to align with rational science to overcome Vermont’s ill-considered attempt to tip the playing field in the public debate over genetically engineered foods. 

Bert W. Rein, a founding partner of Wiley Rein LLP in Washington, D.C., is widely recognized as a leading food and drug, antitrust and commercial litigator. He can be reached at 202.719.7080.

John E. Barry, a litigation and appellate partner at Wiley Rein LLP, has 25 years of experience representing clients in complex civil litigation matters and appeals before federal and state courts and in arbitration proceedings. He can be reached at 202.719.7239.

 

>
Author(s): Bert W. Rein and John E. Barry

Share This Story

Looking for a reprint of this article?
From high-res PDFs to custom plaques, order your copy today!

Recommended Content

JOIN TODAY
to unlock your recommendations.

Already have an account? Sign In

  • people holding baby chicks

    Serovar Differences Matter: Utility of Deep Serotyping in Broiler Production and Processing

    This article discusses the significance of Salmonella in...
    Methods
    By: Nikki Shariat Ph.D.
  • woman washing hands

    Building a Culture of Hygiene in the Food Processing Plant

    Everyone entering a food processing facility needs to...
    Management
    By: Richard F. Stier, M.S.
  • graphical representation of earth over dirt

    Climate Change and Emerging Risks to Food Safety: Building Climate Resilience

    This article examines the multifaceted threats to food...
    Risk Assessment
    By: Maria Cristina Tirado Ph.D., D.V.M. and Shamini Albert Raj M.A.
Subscribe For Free!
  • eMagazine Subscription
  • Subscribe to eNewsletter
  • Manage My Preferences
  • Website Registration
  • Subscription Customer Service

More Videos

Sponsored Content

Sponsored Content is a special paid section where industry companies provide high quality, objective, non-commercial content around topics of interest to the Food Safety Magazine audience. All Sponsored Content is supplied by the advertising company and any opinions expressed in this article are those of the author and not necessarily reflect the views of Food Safety Magazine or its parent company, BNP Media. Interested in participating in our Sponsored Content section? Contact your local rep!

close
  • Deli Salads
    Sponsored byCorbion

    How Food Safety is Becoming the Ultimate Differentiator in Refrigerated and Prepared Foods

Popular Stories

Image of Tyson Foods logo and the logos of Tyson Foods brands

Tyson Foods is Reformulating Food Products to Eliminate Petroleum-Based Synthetic Dyes

USDA building.jpg

More Than 15,000 USDA Employees Take Trump Administration's Resignation Offer

Woman reading the warning label on a bottle of wine

A 40-Year Hangover: Efforts to Revive 1980s Advocacy About the Potential Negative Effects of Alcohol Consumption

Events

May 12, 2025

The Food Safety Summit

Stay informed on the latest food safety trends, innovations, emerging challenges, and expert analysis. Leave the Summit with actionable insights ready to drive measurable improvements in your organization. Do not miss this opportunity to learn from experts about contamination control, food safety culture, regulations, sanitation, supply chain traceability, and so much more.

May 13, 2025

Traceability Next Steps—Supply Chain Implementation

Live Streaming from the Food Safety Summit: Join us for this engaging and highly practical workshop focused on building and sustaining traceability efforts across the food supply chain. 

May 13, 2025

Effective Sanitation Basics

Live Streaming from the Food Safety Summit: This dynamic workshop will help participants understand the sanitation process, effective monitoring, use of data streams, and root cause analysis basics.

View All

Products

Global Food Safety Microbial Interventions and Molecular Advancements

Global Food Safety Microbial Interventions and Molecular Advancements

See More Products
Environmental Monitoring Excellence eBook

Related Articles

  • GMO Testing, Traceability and the Vermont Labeling Law

    See More
  • Vermont’s GMO Labeling Law Starts July 1

    See More
  • Grocery Manufacturers Aim to Overturn Vermont's GMO Labeling Law

    See More

Related Products

See More Products
  • 1444333348.jpg

    Handbook of Food Safety Engineering

  • 1119053595.jpg

    Food Safety for the 21st Century: Managing HACCP and Food Safety throughout the Global Supply Chain, 2E

  • 1119258073.jpg

    FSMA and Food Safety Systems: Understanding and Implementing the Rules

See More Products

Related Directories

  • Hixson Architecture, Engineering & Process

    Hixson partners with some of the most well-recognized brands in the world on complex food and beverage, and science + technology projects. The members of Hixson’s 20 co-located technical disciplines – including building architecture and engineering, process engineering, and project management – seamlessly collaborate, delivering high-quality design solutions effectively and on-time.
  • Food Plant Engineering LLC

    We are designers and builders of sustainable food production facilities. Using imagination, innovation, and ingenuity, we help food manufacturing companies improve food safety, gain productivity, and grow capacity.
  • Omega Engineering Inc.

×

Never miss the latest news and trends driving the food safety industry

eNewsletter | Website | eMagazine

JOIN TODAY!
  • RESOURCES
    • Advertise
    • Contact Us
    • Directories
    • Store
    • Want More
  • SIGN UP TODAY
    • Create Account
    • eMagazine
    • eNewsletter
    • Customer Service
    • Manage Preferences
  • SERVICES
    • Marketing Services
    • Reprints
    • Market Research
    • List Rental
    • Survey/Respondent Access
  • STAY CONNECTED
    • LinkedIn
    • Facebook
    • Instagram
    • X (Twitter)
  • PRIVACY
    • PRIVACY POLICY
    • TERMS & CONDITIONS
    • DO NOT SELL MY PERSONAL INFORMATION
    • PRIVACY REQUEST
    • ACCESSIBILITY

Copyright ©2025. All Rights Reserved BNP Media.

Design, CMS, Hosting & Web Development :: ePublishing